UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: NAVY CHAPLAINCY

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Civil Action No.: 07-0269 (RMU)

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Re Document No.: 95

MEMORANDUM OPINION DENYING THE PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
I. INTRODUCTION This matter comes before the court on the plaintiffs’ sixth motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a). The plaintiffs claim that the Navy Chaplain Corps’ selection board process, in which Navy chaplains cast votes resulting in the promotion of other chaplains, violates the Establishment Clause of the First Amendment to the United States Constitution. More specifically, the plaintiffs allege that the Navy’s selection board process results in denominational favoritism that advantages Catholic and liturgical chaplains while disadvantaging non-liturgical chaplains.1 The plaintiffs contend that this alleged systematic bias has left non-liturgical chaplains underrepresented in the Navy. For the following reasons, the court denies the plaintiffs’ motion for a preliminary injunction.

1

The term “non-liturgical” denotes Christian denominations or faith groups that do not have a

formal liturgy or order in their worship service. Adair, Mem Op. (Jan. 10, 2002) at 5.

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II. FACTUAL & PROCEDURAL BACKGROUND The court has recounted the rich factual history in this case on numerous occasions, and forgoes yet another recitation of the facts.2 See, e.g., Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 293-96 (D.C. Cir. 2006); Adair v. England, 183 F. Supp. 2d 31, 34-38 (D.D.C. 2002). For purposes of this memorandum opinion, the court notes that the plaintiffs claim that the Department of the Navy and several of its officials (collectively, “the defendants”) have discriminated against the plaintiffs on the basis of their religion, by establishing, promoting and maintaining “illegal religious quotas” and religious preferences in their personnel decisionmaking. Adair et al. v. England et al., Civ. No. 00-566 (“Adair”), 4th Am. Compl. ¶ 1; Chaplaincy of Full Gospel Churches et al. v. England et al., Civ. No. 99-2945 (“CFGC”), 4th Am. Compl. ¶ 1; Gibson v. Dep’t of Navy, Civ. No. 06-1696 (“Gibson”), Am. Compl. ¶ 1. More specifically, the plaintiffs allege that the Navy is discriminating against members of “nonliturgical” religions when, inter alia, making promotion decisions. Adair, Mem Op. (Jan. 10, 2002) at 5-9. Three cases have been commenced, all raising “substantially similar constitutional challenges to the Navy Chaplaincy program.” In re Navy Chaplaincy, Miscellaneous No. 07269, Mem. Order (June 18, 2007) at 3-4. The court ultimately determined that these cases, Adair v. England, CFGC v. England and Gibson v. Department of the Navy, should be consolidated under the caption In re Navy Chaplaincy. See id. at 4.

2

On June 18, 2007, the court consolidated these related matters and created a new miscellaneous

action for the three consolidated cases, captioned In re Navy Chaplaincy. See Mem. Order (June

18, 2007).

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Although their constitutional challenges are nearly identical, the plaintiffs in each case are varied. The Adair plaintiffs are 17 current and former non-liturgical chaplains in the Navy. Adair, Mem. Op. (Jan. 10, 2002) at 2. In the CFGC case, the plaintiffs are composed of an endorsing agency for non-liturgical military chaplains called the Chaplaincy of Full Gospel Churches, and seven of its individual members. Id. Lastly, the Gibson plaintiffs consist of 41 individual plaintiffs and one organizational plaintiff, the Associated Gospel Churches, which is “a fellowship of non-denominational, evangelical churches.” Gibson, Am. Compl., ¶ 3.
As is immediately pertinent here, the Navy Chaplain Corps’ selection process allows Navy chaplains to cast votes for or against chaplains, potentially resulting in the promotion of chaplains to higher ranks and larger pay. See generally Pls.’ Mot. for Prelim. Inj. According to the plaintiffs, chaplain selection board members vote by pressing one of five buttons (ranging from zero to one hundred in twenty-five degree increments) that are concealed in a sleeve. Id. ¶ 3. If one chaplain on the selection board presses the button for “zero,” that single vote “zeroes out” the other votes, resulting in the likely non-promotion of a candidate. Id. ¶ 4. Because the voting buttons are concealed in a sleeve, chaplains’ votes are and remain secret. Id. ¶ 3.
As a result of this process, the plaintiffs now move for preliminary injunction, asking the court to enjoin the Navy from “(1) the use of the Chief of Chaplains (the ‘Chief’) or his Deputy as chaplain selection board president; (2) the use of secret votes thereon with no accountability; and (3) placing chaplains on chaplain selection boards without effective guarantees that the power to distribute government benefits will be used solely for secular, neutral and nonideological purposes.” Id. at 1. The plaintiffs have recently discovered that the government intends to proceed imminently with the selection board process, highlighting the plaintiffs’ need
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to swiftly prevent the government from beginning its promotion cycle. With the plaintiffs’ motion ripe for adjudication, the court turns to the applicable legal standards and the parties’ arguments.
III. ANALYSIS A. Legal Standard for Injunctive Relief This court may issue interim injunctive relief only when the movant demonstrates “[1] that [they are] likely to succeed on the merits, [2] that [they are] likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008) (citing Munaf v. Geren, 128 S. Ct. 2207, 2218-19 (2008)). It is particularly important for the movant to demonstrate a likelihood of success on the merits. Cf. Benten v. Kessler, 505 U.S. 1084, 1085 (1992) (per curiam). Indeed, absent a “substantial indication” of likely success on the merits, “there would be no justification for the court’s intrusion into the ordinary processes of administration and judicial review.” Am. Bankers Ass’n v. Nat’l Credit Union Admin., 38 F. Supp. 2d 114, 140 (D.D.C. 1999) (internal quotation omitted). The other critical factor in the injunctive relief analysis is irreparable injury. A movant must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 129 S. Ct. at 375 (citing Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)). Indeed, if a party fails to make a sufficient showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). Provided the plaintiff demonstrates a likelihood of success
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on the merits and of irreparable injury, the court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987). Finally, “courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).
As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). The Supreme Court has observed “that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Id. Therefore, although the trial court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted lightly. In addition, any injunction that the court issues must be carefully circumscribed and “tailored to remedy the harm shown.” Nat’l Treasury Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C. Cir. 1990).
B. The Court Denies the Plaintiffs’ Motion for a Preliminary Injunction 1. The Court Has Jurisdiction to Entertain the Plaintiffs’ Claims
As a threshold matter, the defendants challenge the court’s jurisdiction to grant any injunctive relief, and to entertain the plaintiffs’ claims insofar as they relate to the promotion boards. According to the defendants, “[t]he court does not possess jurisdiction to enjoin selection board proceedings” because Congress has statutorily limited the relief available by enacting 10 U.S.C. § 628. The plaintiffs respond that § 628 does not specifically address injunctions, and argue that “[h]ad [Congress] wanted to” deprive the court of jurisdiction in this
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regard, it would have chosen more specific language. Pls.’ Reply at 10. Additionally, the
plaintiffs assert that the court has jurisdiction “to enjoin unconstitutional action by government
officials.” Id.
In 2001, Congress enacted legislation that limits a court’s jurisdiction over those actions
filed on or after December 28, 2001 which seek judicial review of a decision or recommendation
by certain military boards. See 10 U.S.C. § 628(h). More specifically, the relevant provisions
require that a person seeking judicial review of a decision made by a “promotion board” must first exhaust his or her administrative remedies by resorting to a “special selection board.”3 See
10 U.S.C. § 628(h). Section 628(h)(1) forbids any “court of the United States” from considering
“a claim based to any extent on the failure of a person to be selected for promotion by a
promotion board,” unless “the person has first been referred by the Secretary concerned to a
special selection board convened under [10 U.S.C. § 628] and acted upon by that board and the
report of the board has been approved by the President.” Id. § 628(h)(1) (emphasis added).
Furthermore, 10 U.S.C. § 628(h)(2) states:
No official or court of the United States may, with respect to a claim based to any extent on t he failure of a person to be selected for promotion by a promotion board –
except as provided in subsection (g), grant any relief on t he claim unless the person has been selected for promotion by a special selection board convened under this section to consider the person for recommendation for promotion and the report of the board has been approved by the President.

3

A “special selection board” is a board convened to consider an officer’s eligibility for a

promotion, see 10 U.S.C. § 628, or to review the decision by a selection board not to recommend

an officer (or a former officer) for promotion, see 10 U.S.C. § 14502.

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The plain language of these provisions indicates that a district court may review a promotion board’s decisions only after a special selection board first considers a plaintiff’s claim. 10 U.S.C. § 628(h); see also Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 704 (D.C. Cir. 2009) (observing that determining whether a statute’s exhaustion requirements are jurisdictional “is a question of statutory interpretation”); Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin. Inc., 502 U.S. 32, 44 (1991) (determining that the district court lacked jurisdiction because the relevant statute had “provide[d the Court] with clear and convincing evidence that Congress intended to deny the District Court jurisdiction” to review the case); Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 101-103 (D.C. Cir. 1986) (noting that “the inclusion of a detailed grievance procedure to resolve [] disputes . . . was the strongest evidence of Congressional intent” that a party exhaust administrative remedies before resorting to the federal courts”). Thus, a court lacks jurisdiction to review decisions by the promotion boards and special selection boards if a plaintiff fails to exhaust his or her administrative remedies under § 628. See Nat’l Coal. to Save Our Mall v. Norton, 269 F.3d 1092, 1095 (D.C. Cir. 2001) (determining that Congress’s “unequivocal intent to cut off judicial review” for a specific type of claim meant that the court lacked jurisdiction over that claim); Cotrich v. Nicholson, 2006 WL 3842112, at *2 (M.D. Fla. Dec. 19, 2006) (dismissing the case, inter alia, for lack of jurisdiction due to the plaintiff’s failure to exhaust the administrative procedures in § 1558). Additionally, the court may not grant “any relief” unless certain procedural hurdles have been satisfied, i.e. the convening of a special selection board and approval of that board’s report by the President. 10 U.S.C. § 628(i).
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There is, however, one critical exception carved out by Congress. Section 628(i) states that “nothing in this section” limits “the jurisdiction of any court of the United States under any provision of law to determine the validity of any law, regulation, or policy relating to selection boards.” 10 U.S.C. 628(i). Stated otherwise, under § 628(i), a court retains jurisdiction to review the actions by a selection or promotion board so long as the claim seeks that the court decide the “validity of any law, regulation, or policy relating to selection boards.” 10 U.S.C. §§ 1558(g), 628(i).
In reviewing § 628(i) and § 628(h), the court is persuaded that Congress did not intend to deprive this court of jurisdiction to review the alleged unconstitutional policies that guide a promotion board. The plaintiffs specifically challenge the policies used by the Navy to determine the composition and decision-making of the promotion boards. Thus, because the plaintiffs’ claims challenge the validity of policies relating to promotion boards, the court concludes that it maintains jurisdiction to review these claims pursuant to § 628(i). Moreover, the court believes that § 628(h), when read in conjunction with § 628(i), does not limit the court’s ability to provide injunctive relief when such relief is taken as part of determining the validity of promotion boards’ policies. Motion Picture Ass’n of Am., Inc. v. Fed. Commc’ns Comm’n, 309 F.3d 796, 801 (D.C. Cir. 2002) (noting that individual sections of a single statute should be construed together).
2. The Plaintiffs Fail to Demonstrate Standing for the Injunctive Relief Requested The plaintiffs assert that they have standing because they “include active duty and active
duty Reserve chaplains and two endorsing agencies with active duty Navy chaplains and
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chaplain candidates who will be reviewed by the selection board procedures they challenge.” Pls.’ Mot. at 2. The defendants argue that the plaintiffs do not meet their burden in demonstrating standing because the plaintiffs cannot “show any injury-in-fact sufficient to establish their standing to seek prospective relief enjoining any future [promotion] boards.” Defs.’ Opp’n at 12. Specifically, the defendants contend that in requesting injunctive relief, the plaintiffs ask the court to rely on “dubious presumptions.” Id.
To demonstrate standing, a plaintiff must have suffered (or in this case, will suffer) an injury in fact, which is defined as a harm that is concrete and actual or imminent, not conjectural or hypothetical. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 243 (D.C. Cir. 1999) (citing Steel Co., 523 U.S. at 103). This Circuit has made clear that no standing exists if the plaintiff’s allegations are “purely ‘speculative[, which is] the ultimate label for injuries too implausible to support standing.’” Tozzi v. Dep’t of Health & Human Servs., 271 F.3d 301, 307 (D.C. Cir. 2001) (quoting Advanced Mgmt. Tech., Inc. v. Fed. Aviation Admin., 211 F.3d 633, 637 (D.C. Cir. 2000)). Finally, if a plaintiff is an association, it may demonstrate standing as long as “its members would have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires members’ participation in the lawsuit.” Consumer Fed’n of Am. v. Fed. Commc’ns Comm’n, 348 F.3d 1009, 1011 (D.C. Cir. 2003) (quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)).
As the defendants observe, the plaintiffs essentially ask the court to assume that the chaplains who will serve as promotion board members will “necessarily favor candidates affiliated with his or her own denomination,” and that the future promotion boards’ decision will
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be controlled by the voting habits of these allegedly biased chaplain members. As the court has previously explained to the parties, when a Navy chaplain sits on a promotion board, they act “first and foremost as Naval officers,” and are presumed to undertake their official duties in good faith. See Adair, Mem. Op. (Jan. 10, 2002) at 48-49. Absent compelling evidence to the contrary, the plaintiffs’ suggestions cannot support a finding that the plaintiffs have standing. Winpisinger v. Watson, 628 F.2d 133, 139 (D.C. Cir. 1980) (noting that standing does not exist where the court “would have to accept a number of very speculative inferences and assumptions in any endeavor to connect [the] alleged injury with [the challenged conduct]”). As such, the court determines that the plaintiffs lack standing to move for the injunctive relief requested in their motion. Trans World Airlines, Inc. v. National Mediation Bd., 1981 U.S. Dist. LEXIS 13618, at *27 (D.D.C. 1981) (noting that the harm suggested by the plaintiff was “too speculative and minimal to generate standing to move for injunctive relief”).
3. Substantial Likelihood of Success on the Merits The plaintiffs argue that the evidence they have submitted makes a clear showing that the defendants will promote personnel who belong to certain denominations over others. Pls.’ Mot. at 17. According to the plaintiffs, their expert testimony suggests that the defendants are engaging in practices which “result in clear denominational preferences in the award of government benefits, advancing some denominations and inhibiting others to the detriment of Plaintiffs.” Id. at 17. They further contend that “[t]he challenged practices are not narrowly tailored to achieve a compelling purpose,” and therefore “fail all Establishment Clause tests and result in unequal treatment for all chaplains.” Id.
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The defendants respond that “[t]here is no empirical evidence that would suggest denominational favoritism or discrimination correlated to the denominational affiliation of chaplain board members.” Defs.’ Opp’n at 19-20. In support of this argument, the defendants put forth testimony from their own expert which “found serious flaws in [the plaintiffs’ expert’s] analyses.” Id. at 20. They further argue that establishment clause liability cannot “be predicated solely on statistical evidence of disparate impact in favor of or against certain denominations.” Id.
Because a preliminary injunction is an “extraordinary and drastic remedy,” it is axiomatic that “the one seeking to invoke such stringent relief is obliged to establish a clear and compelling legal right thereto based upon undisputed facts.” Belushi v. Woodward, 598 F. Supp. 36, 37 (D.D.C. 1984) (citing Rosemont Enterprises, Inc. v. Random House Inc., 366 F.2d 303, 311 (2d Cir. 1966)). If the record presents a number of disputes regarding the inferences that must be drawn from the facts in the record, the court cannot conclude that the plaintiff has demonstrated a substantial likelihood of success on the merits. Suburban Assocs. Inc. v. U.S. Dep’t of Housing & Urban Development, 2005 WL 3211563, at *10 (D.D.C. 2005); Secs. & Exchange Comm’n v. Falstaff Brewing Corp., 1977 WL 1032, at *18 (D.D.C. 1977).
Here, the court concludes that the plaintiffs have not made the necessary showing that they have a substantial likelihood of success on the merits. First, the plaintiffs have submitted no evidence from which the court could assume that the future promotion boards will follow any putative pattern of alleged past discrimination. See Defs.’ Opp’n at 23. Second, the plaintiffs’ constitutional theory is not one that has been endorsed by this Circuit or the Supreme Court. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540-43 (1993); Larson
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v. Valente, 456 U.S. 228, 246 (1982); cf. Lemon v. Kurtzman, 403 U.S. 602 (1971). Accordingly, the court concludes that the plaintiffs have not made a clear showing that they are likely to succeed on the merits of their Establishment Clause claim.4

4. Irreparable Harm With regard to the irreparable harm prong, this Circuit has “set a high standard” in order for a plaintiff to establish the existence of an irreparable injury. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). The injury must be both certain and great, and must be actual and not theoretical. Id. In addition, the injury must be beyond remediation. Id. “Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough.” Id. (quoting Va. Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958) (internal quotation marks omitted)). The plaintiffs claim that absent the injunction, they will be denied benefits in the form of promotions, continuation of active duty and key assignments. Pl.’s Mot. at 24. These losses, however, constitute the very type of injury that the Circuit has indicated are insufficient to establish irreparable harm. See England, 454 F.3d at 297. The loss of money, time and energy from these benefits comprise the types of injuries that do not fall within the scope of relief of a preliminary injunction.

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In addition, the defendants maintain that one of the plaintiffs’ central arguments – that certain

duties have been impermissibly delegated to religious functionaries – has already been rejected

by this court. Defs.’ Opp’n at 24. The court need not reiterate its previous analysis; suffice it to

say that a religious individual need not be hermetically sealed from the decision-making process.

The presence of a religious employee on a board that evaluates another fellow officer’s fitness for

promotion does not, by itself, make a clear showing that a constitutional injury is imminent.

Adair, Mem. Op. (Jan. 10, 2002) at 47-50.

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Furthermore, “[t]he possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Id. at 297-98 (quoting FPC, 259 F.2d at 925). The defendants here correctly point out that even if the plaintiffs suffer injury in the form of denied benefits, any such injury may be reparable through the Navy’s special selection board procedures to remedy past promotion decisions that were influenced by discrimination. Def.’s Opp’n at 3. This Circuit has noted that “former officers who prevail before the special selection board are entitled to revision of their military record to correct an error or remove an injustice resulting from not being selected for promotion by the initial board.” England, 454 F.3d at 298 (internal quotations and citations omitted). Accordingly, the plaintiffs fail to establish that the harms alleged above are irreparable.
The plaintiffs assert that the defendants’ challenged practices violate the Establishment Clause by discriminating against the plaintiffs on the basis of their religious affiliation, and therefore the defendants’ alleged violation is sufficient to satisfy the irreparable harm prong. Pl.’s Mot. at 36. This Circuit has indeed held that the mere allegation that the government is violating the Establishment Clause may suffice to satisfy this prong. England, 454 F.3d at 304. The Circuit has further noted, however, that a “preliminary injunction will not issue unless the moving party also shows, on the same facts, a substantial likelihood of success on the merits, that the injunction would substantially injure other interested parties, and that the public interest would be furthered by the injunction.” Id. The Circuit has indicated that “unsupported or undeveloped allegations of government establishment . . . will not withstand scrutiny concerning the movant’s likelihood of success on the merits, thereby defeating a request for a preliminary
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injunction.” Id. “Likewise,” the Circuit has concluded, is the fate of preliminary injunction motions that “inflict untoward detriment on persons not party to the case,” as it is for “motions that do not further the public interest.” Id. Thus, while the Circuit has found that a violation of the Establishment Clause is sufficient to constitute irreparable harm, its holding does not “in any way lessen[] the burden for parties seeking preliminary injunctive relief [and instead] merely focuses greater attention on the three other factors that indisputably enter into the preliminary injunction determination.” Id. Accordingly, the court presumes that irreparable harm is present and weighs more heavily the other factors discussed herein in deciding the plaintiffs’ preliminary injunction motion.
4. Substantial Injury to Others The plaintiffs argue that a preliminary injunction would not substantially injure any third parties. Pls.’ Mot. at 37-38. In contrast, the defendants argue that the issuance of a preliminary injunction would affect those potential chaplains who are currently entitled to a promotion. Defs.’ Opp’n at 38. The defendants further note that scores of military personnel currently rely on a fully staffed chaplaincy corps; these individuals would be harmed by a judicial order that interrupts the flow of military personnel decisions. Id. Whether or not third parties would be affected by a preliminary injunction is of central importance when deciding whether to issue a preliminary injunction. National Wildlife Federation v. Burford, 835 F.2d 305, 315 (D.C. Cir. 1987). A preliminary injunction should only be issued if “[t]hird parties are not subject to its prohibitions.” Id. at 316. Here, it appears that two groups of people would be directly or indirectly affected by the injunction the plaintiffs
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seek. First, the injunction the plaintiffs seek would necessarily halt the promotion of those individuals who are currently scheduled to be promoted. See Defs.’ Opp’n at 38. An injunction would prevent those individuals from receiving all the benefits (monetary or otherwise) that accompany the higher rank to which they are presumably entitled. Id.
Second, those military employees who rely upon a properly staffed chaplaincy corps would be indirectly affected by enjoining promotion boards. Should the chaplaincy corps be understaffed, these individuals would not be able to consistently rely on the religious services provided by military chaplains. Defs.’ Opp’n at 38. The plaintiffs do not dispute this fact in their briefing. See Pls.’ Reply at 24-25.
In sum, the defendants have shown that there is a substantial group of third parties who would be affected – both directly and indirectly – by the judicial injunction sought by the plaintiffs. Accordingly, the court’s analysis of the third prong of the preliminary injunction framework militates against a finding that the plaintiffs have made “clear showing” of their entitlement to injunctive relief. See Mazurek, 520 U.S. at 972.
5. Public Interest The plaintiffs argue that a preliminary injunction would serve the public interest because such an order would provisionally remedy any potential constitutional violations. Pls.’ Mot. at 38. The plaintiffs thus argue that the public would be served by an order requiring the military to comply with the Constitution’s First Amendment guarantees. Id. In contrast, the defendants argue that a preliminary injunction would harm the Navy by interrupting its personnel decisions and causing its chaplaincy corps to be understaffed. Defs.’ Opp’n at 38. The defendants
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maintain that a halt in the flow of chaplaincy personnel decisions would cause increased gaps in the ability of chaplains to carry out their mission. Id. In addition, the defendants maintain that the public at large would be harmed by an unwarranted judicial intrusion into military matters. Id.
As the Supreme Court held in Goldman v. Weinberger, “[the judicial] review of military regulations [that are] challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society.” 475 U.S. 503, 507 (1986). Judicial deference is therefore “at its apogee” when a court is asked to review the constitutional propriety of military affairs. Rostker v. Goldberg, 453 U.S. 57, 70 (1981). Similarly, case law counsels extreme caution before second-guessing decisions relating to the military’s personnel decisions. Blevins v. Orr, 721 F.2d 1419, 1423 (D.C. Cir. 1983) (“It is beyond the expertise, as well as the authority, of the judiciary to second-guess the military with respect to overall manpower needs and promotion policies or to pass judgment on military policy concerns, such as possible congressional antipathy to officer promotion practices.”). This is particularly true where, as is the case here, it is unclear that any constitutional violation is imminent. See Bors v. Allen, 607 F. Supp. 2d 204, 212 (D.D.C. 2009).
The court is acutely aware of the nature and gravity of the constitutional injuries alleged. Nevertheless, the judiciary must defer to military considerations even when the challenges involve First Amendment guarantees protected by the Constitution. Goldman, 475 U.S. at 59708. In addition, the public may suffer when the judiciary interferes with the efficient administration of the military. Kosnik v. Peters, 31 F. Supp. 2d 151, 158 (D.D.C. 1998) (“It would be damaging to shift the decision [as to the composition, training, equipping, and control
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of a military force] from trained military professionals to a non-specialist judiciary.”). Moreover, “interference in military personnel decisions causes great harm to the military because of the potential cumulative effect of multiple injunctions.” Bors v. Allen, 607 F. Supp. 2d 204, 212 (D.D.C. 2009).
The defendants maintain that a judicially ordered halt in military personnel decisions would hamper the military’s ability to carry out its mission. Id. In addition, the defendants maintain that the public would be harmed by an unwarranted judicial intrusion into military matters inasmuch as it would open the door to further intrusions. Id. The plaintiffs offer no evidence with which to rebut the defendant’s arguments, opting instead to claim that these matters are “specious” or unsubstantiated. See Pls.’ Reply at 24. In doing so, the plaintiffs misconstrue their duty to satisfy the “extraordinary” burden that is borne by a party seeking a judicial remedy prior to the commission of any constitutional injury. Mazurek, 520 U.S. at 972. The plaintiffs argue that the public’s strong interest in the efficient administration of the military only applies when the military strictly adheres to the Constitution. Pls.’ Reply at 25. This puts the cart before the horse, however; the plaintiffs have not yet shown unequivocally that the military will commit any constitutional error. See Part III.B.3, supra. Until the plaintiffs have done so “by a clear showing,” Mazurek, 520 U.S. at 972, the court must defer to the military’s personnel decisions, Goldberg, 475 U.S. at 507. Accordingly, the court concludes that the plaintiffs have not made a clear showing that a preliminary injunction would serve the public interest.
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In sum, the court concludes that the plaintiffs have not satisfied their burden of showing their entitlement to injunctive relief. The court notes that the evidence put forth by the plaintiffs at best establishes a colorable claim to relief under the Establishment Clause. Absent a clearer showing of the plaintiffs’ likelihood of success on the merits, there is no justification for the court to deviate from the ordinary course of adjudication and judicial review. See Am. Bankers Ass’n, 38 F. Supp. 2d at 140. Although the plaintiffs’ claims might demonstrate an irreparable injury if ultimately vindicated, see England, 454 F.3d at 304, the plaintiffs have failed to demonstrate that an injunction would not substantially injure third parties. In addition, the plaintiffs have failed to show that the public interest would be furthered by the court’s intrusion into military personnel decisions. Goldman, 475 U.S. at 507-08; Weinberger v. Romero-Barcelo, 456 U.S. at 312 (noting that courts must “pay particular regard for the public consequences in employing the extraordinary remedy of injunction”). Accordingly, the court denies the plaintiffs’ motion.
IV. CONCLUSION For the foregoing reasons, the court denies the plaintiff’s motion for injunctive relief. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 30th day of January, 2012.
RICARDO M. URBINA United States District Judge
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 Case 1:07-mc-00269-GK Document 3 Filed 07/10/07 Page 1 of 55

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: NAVY CHAPLAINCY

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1: 07-mc-269 (RMU)

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PLAINTIFFS’ RENEWED MOTION FOR A PRELIMINARY INJUNCTION FOLLOWING REMAND ADDRESSING DEFENDANTS’ DENOMINATIONAL PREFERENCE IN RETAINING CATHOLIC CHAPLAINS ON ACTIVE DUTY PAST
THEIR STATUTORY SEPARATION AGES

In accord with the Court’s Order consolidating all chaplain cases, all plaintiffs in the

above case submit this motion renewing the Chaplaincy of Full Gospel Churches v. Winter and

Adair v. Winter 2003 Motion for an Injunction following remand from the Court of Appeals in

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006). Their

memorandum of points and authorities provided herein shows they are entitled to an injunction

because the defendants’ practice of continuing Catholic chaplains past their statutorily separation

ages to enable them to qualify for retirement pay is an unconstitutional preference and contrary to

statutory limitations limiting the time service personnel may remain on active military service.

In accord with Local Civil Rule 7(m), counsel for the parties discussed this motion and

defendants’ counsel stated they will oppose this motion.

Dated: July 10, 2007
Of Counsel: Douglas McKusick, Esq. THE RUTHERFORD INSTITUTE P.O. Box 7482 Charlottesville, VA 22906-7482

Respectfully submitted, /S/ Arthur A. Schulcz, Sr.
ARTHUR A. SCHULCZ, Sr. D.C. Bar No. 453402 Counsel for CFGC and the Adair Plaintiffs 2521 Drexel Street Vienna, VA 22180 703-645-4010

Case 1:07-mc-00269-GK Document 3 Filed 07/10/07 Page 2 of 55

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: NAVY CHAPLAINCY

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Case No. 1: 07-mc-269 (RMU)

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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR RENEWED MOTION FOR AN INJUNCTION
PROHIBITING DEFENDANTS DENOMINATIONAL PREFERENTIAL RETENTION PRACTICE OF RETAINING CATHOLIC CHAPLAINS PAST THEIR STATUTORY
SEPARATION AGES TO QUALIFY FOR RETIRED PAY

Dated: July 10, 2007
Of Counsel: Douglas McKusick, Esq. THE RUTHERFORD INSTITUTE P.O. Box 7482 Charlottesville, VA 22906-7482

Respectfully submitted,
/S/ Arthur A. Schulcz, Sr. ARTHUR A. SCHULCZ, Sr. D.C. Bar No. 453402 Counsel for CFGC and the Adair Plaintiffs 2521 Drexel Street Vienna, VA 22180 703-645-4010

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INDEX INDEX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 THE PLAINTIFFS HAVE STANDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 RECENT OR CURRENT EVENTS BEARING ON THIS MOTION. . . . . . . . . . . . . . . . . . . . . . 4 STANDARD FOR AN INJUNCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 I. THE UNDISPUTED FACTS AND EVIDENCE SHOW DEFENDANTS HAVE BEEN
OPERATING A SPECIAL PENSION PLAN SOLELY FOR CATHOLIC CLERGY, A CLEAR DENOMINATIONAL PREFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 II. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR CLAIM DEFENDANTS’ 4109 PROGRAM VIOLATES THE ESTABLISHMENT CLAUSE. . . . . . . . . . . . . . . . 11 A. Each of the 4109 Program’s Three Parts Demonstrates a Denominational
Preference.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. Strict Scrutiny of the 4109 Program Is Mandated. . . . . . . . . . . . . . . . . . . . . . . . . 13 C. Defendants’ Pension Qualification Program for Overage Catholic Chaplains Fails
Strict Scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 1. The 4109 Program has no compelling purpose. . . . . . . . . . . . . . . . . . . . . 17 2. The 4109 Program fails strict scrutiny because it is not narrowly tailored to
achieve a compelling government purpose. . . . . . . . . . . . . . . . . . . . . . . . 20 D. The Challenged Practice Violates the Lemon Test . . . . . . . . . . . . . . . . . . . . . . . . 22
1. The 4109 Program has no valid secular purpose. . . . . . . . . . . . . . . . . . . . 23
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2. Defendants’ 4109 Program fails Lemon’s second prong by advancing the Catholic religion and inhibiting the religion of others.. . . . . . . . . . . . . . . 24
3. Defendants’ 4109 Program unconstitutionally entangles the Navy and religion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
D. The 4109 Program Fails the Reasonable Observer Test. . . . . . . . . . . . . . . . . . . . 26
1. The reasonable observer examines the 4109 Program’s history and purpose.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2. The reasonable observer would conclude the 4109 Program is an illegal preference designed solely to advance Catholic interests. . . . . . . . . . . . . 28
III. PLAINTIFFS WILL SUCCEED ON THEIR CLAIM THE CHALLENGED PRACTICE VIOLATES DUE PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
IV. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR CLAIM DEFENDANTS’ CONTINUATION OF CATHOLIC CHAPLAINS BEYOND STATUTORY SEPARATION AGES IS WITHOUT AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
A. The Secretary of Defense Has Limited the Secretary of Navy’s Authority to Place Reservists in the Retired Reserve to Those Who Meet Specific Criteria. . . . . . . 32
B. DOD’s Definition of the Retired Reserve Excludes the 4109s. . . . . . . . . . . . . . . 34
C. Defendants Must Comply With DOD’s Instructions . . . . . . . . . . . . . . . . . . . . . . 36
D. The 4109s Have Been Illegally Classified and Illegally Continued on Active Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
E. Title 10 Provides Limited Authority to Extend Regular Chaplains Eligible for Retirement Beyond Age 62 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
F. Title 10 Provides No Authority to Extend Reserve Chaplains on Active Duty Beyond Age 67.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
V. PLAINTIFFS MEET THE OTHER INJUNCTION CRITERIA.. . . . . . . . . . . . . . . . . . . 41
A. Defendants’ Establishment Clause Violation Produces Irreparable Harm. . . . . . 41
B. Terminating Defendants’ Unconstitutional Practice Poses No Burden or Injury on Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
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Case 1:07-mc-00269-GK Document 3 Filed 07/10/07 Page 5 of 55 C. Terminating Defendants’ Unconstitutional Practice Is in the Public Interest .. . . 41 D. There Are No Third Party Rights That must Be Addressed . . . . . . . . . . . . . . . . . 44 VI. PLAINTIFFS HAVE MET THE CRITERIA FOR AN INJUNCTION. . . . . . . . . . . . . . 45 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 LIST OF EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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TABLE OF AUTHORITIES FEDERAL CASES: Adair v. England, 183 F.Supp.2d 31 (D.D.C. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 31 Adair v. England, 217 F.Supp.2d 9 (D.D.C. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 American Chemical Council v. Johnson, 406 F.3d 738 (D.C. Cir. 2005). . . . . . . . . . . . . . . . . . . 40 Anderson v. Laird, 466 F.2d 283 (D.C. Cir.), cert denied, 409 U.S. 1076 (1972). . . . . . . . . 15, 16 Board of Ed. of Kiryas Joel v. Grumet, 512 U.S. 687 (1994). . . . . . . . . . . . . . . . . . . . . . 21, 25, 32 Bond v. United States, 47 Fed. Cl. 641 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 37 Center for Auto Safety v. Dole, 846 F.2d 1532 (D.C. Cir 1988).. . . . . . . . . . . . . . . . . . . . . . . . . 36 Chaplaincy of Full Gospel Churches v. England, (“CFGC”), 454 F.3d 290
(D.C. Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 5, Commack Self-Service Kosher Meets, Inc., v. Weiss, 294 F.3d 415 (2d Cir. 2002), cert denied,
537 U.S. 1187 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26 Cooney v. Dalton, 877 F. Supp. 508 (D.Hawai’i 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 26 County of Allegheny, 492 U.S. 573 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 22, 23, 27 Dilly v. Alexander, 603 F.2d 919 (D.C. Cir 1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Elrod v. Burns, 427 U.S. 347(1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 Everson v. Board of Ed., 330 U.S.(1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Engel v. Vitale, 370 U.S. 421(1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 42 Goldman v. Weinberger, 475 U.S. 503 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Katcoff v. Marsh, 755 F.2d at 223 (2d Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 22
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Lac Vieux Desert Band of Lake Superior Chippewa v. Michigan Gaming Control Board, 276 F.3d 876(7th Cir.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24, 42 Larsen v. U.S. Navy, 486 F.Supp.2d 11 (D.D.C. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Larson v. Valente, 456 U.S. 228 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 21, 32 Lee v. Weisman, 505 U.S. 577, 606 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Lemon v. Kurtzman, 403 U.S. 602 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 McCreary Co. v. ACLU of Kentucky, 545 U.S. 844 (2003).. . . . . . . . . . . . . . . . . . . . . . . 11, 27, 28 McGowan v. Maryland, 366 U.S. 420(1961).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Miami Nation of Indians of Indiana, Inc. v. U.S. Dept. of the Interior, 255 F.3d 342
(7th cir 2001), cert denied, 534 U.S. 1129 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Perrin v. United States, 444 U.S. 37 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Poole v. Rourke, 779 F.Supp. 1546(E.D.Cal.1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Rigdon v. Perry, 962 F.Supp 150, 165 (D.D.C. 1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). . . . . . . . . . . . . . . . . . . . . . . 27 Torcaso v. Watkins, 367 U.S. 488 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 United Christian Scientists v. First Church of Christ Scientist, 829 F.2d 1152
(D.C. Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18 Utah Licenced Bev. Ass’n v. Leavitt, 256 F.3d 1061(10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . 43 Wallace v. Jaffree, 472 U.S. 38 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Wilkinson v. Legal Services Corp., 27 F. Supp. 2d 32 (D.D.C. 1998). . . . . . . . . . . . . . . . . . . . . 43
STATUTES: 10 U.S.C. § 101(c)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
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10 U.S.C. § 1251. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 38, 40 10 U.S.C. § 14509 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6, 39 10 U.S.C. § 14703. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 40, 41 MISC: Department of Defense Instruction 1200.15, Assignment to and ... Transfer to the Retired
Reserve.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Department of Defense Instruction 1215.06, Uniform Reserve, Training and Retirement Categories Administration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Department of Defense Instruction 1215.19, Uniform Reserve, Training and Retirement
Categories Administration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-35, 37 Department of Defense Directive 1352.1, Management and Mobilization of Regular and Reserve
Retired Military Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 35 Department of Defense Directive 1402.1, Employment of Retired Members of the
Armed Forces.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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INTRODUCTION All the plaintiffs in the above now consolidated case move the court for an order: (1) enjoining defendants from continuing their unconstitutional preference for Catholics manifested in their policy and practice1 of allowing Catholic chaplains to remain on active duty past their statutory separation age for the purpose of qualifying for retired pay; 2) enjoining further violations by (a) stopping defendants’ preferential retention practice and (b) requiring defendants to comply strictly with DOD instructions concerning classification of retired personnel; and (3) requiring defendants to remedy the constitutional and statutory violation by complying with the discharge statutes. The Chaplaincy of Full Gospel Churches v. Winter and Adair v. Winter, (CFGC /Adair) plaintiffs renew their original motion for such relief. Because the law of the case holds 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 v. England, (“CFGC”), 454 F.3d 290, 303 (D.C. Cir. 2006), this motion focuses on the other three injunction criteria.
BACKGROUND In 2003, defendants produced evidence in discovery establishing their practice of allowing Roman Catholic Reserve chaplains, and only Roman Catholics, to remain on active duty past the statutory separation ages for Reserve officers. At the time, 10 U.S.C. § 14509 established the separation age for Reserve officers at 60. Based on defendants’ production of documents, plaintiffs identified 23 Reserve Catholic chaplains retained on active duty past age 60
1 Whether the course of conduct challenged here is called a practice, a pattern and practice, or a policy is immaterial. Plaintiffs refer to the challenged conduct or actions as a “practice”, one that has existed well over a decade.
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to acquire the necessary 20 years time in service (“TIS”) to qualify for retirement pay. Seven of these were LTs and LCDRs over age 67, four of whom were in their 70s. The seven chaplains over age 67 were given the status “4109", meaning Retired Reservist, although none of the 4109 chaplains met any of DOD’s criteria for Retired Reserve.
In June 2003, plaintiffs filed a motion for a preliminary or structural injunction to (1) stop the above denominational preferential practice, (2) enjoin further violations and (3) require defendants to remedy the statutory violation by complying with the discharge statutes. Plaintiffs argued they met the four criteria for an injunction. First, plaintiffs would prevail on the merits of their claim because (1) the practice constituted a denominational preference subjecting it to strict scrutiny, and (2) defendants would fail strict scrutiny because the defendants ability to hire contract clergy or auxiliary chaplains if they were needed showed the practice was not narrowly tailored to meet a compelling government objective. Second, defendants’ First Amendment violation, “for even minimal periods of time [] results in irreparable harm.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Third, the injunction placed no burden on defendants because they were required to follow the law and the Constitution, there were legal alternatives available to meet the needs of Catholics, and the challenged chaplains would suffer no harm because they had been commissioned with age waivers requiring them to acknowledge they would not qualify for retirement pay. Fourth, requiring the military to follow the law was in the public interest. Plaintiffs’ Motion for a Preliminary and Structural Injunction and Partial Summary Judgment (the “Inj Mot”), CFGC Docket No. 142 (incorporated by reference).
In the alternative, plaintiffs moved for summary judgment because plaintiffs were entitled to judgement as a matter of law. Id.
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The Court denied plaintiffs’ Inj. Mot., holding plaintiffs had not shown irreparable harm because Elrod did not apply to Establishment Clause violations; Plaintiffs appealed.
On July 9, 2006, the D.C. Circuit reversed, holding that Elrod’s rule did apply to alleged Establishment Clause violations and “a party alleging a violation of the Establishment Clause per se satisfies the irreparable injury requirement of the preliminary injunction calculus.” CFGC, 454 F.3d at 304. The DC. Circuit remanded to the District Court the question whether plaintiffs satisfied the remaining three criteria. Id.
On October 20, 2006, as the parties were preparing a briefing schedule to address the remand issue, the Court stayed the CFGC/Adair case pending the D.C. Circuit’s resolution of Miller v. Secretary of Navy, 476 F.3d 936 (D.C. Cir. 2007), an unrelated case. Plaintiffs moved for an order clarifying or lifting the stay because of the uncertainty as to when Miller would be decided and a stay was incompatible with the purpose of an injunction. CFGC Doc. No. 237. Defendants opposed. The Court denied the motion to lift the stay as moot, January 24, 2007, after release of the Miller decision. The parties proposed and the Court approved a briefing schedule on the mandate; briefing was completed May 21, 2007. Plaintiffs incorporate the CFGC/Adair Opening, Reply, and Sur Reply Briefs by reference.
On June 18, 2007, the Court denied the Gibson v. U.S. Navy plaintiffs’ motion to retransfer their case to the Northern District of Florida, consolidated all the chaplain cases into a new case with the above citation, denied all pending motions without prejudice because the pending motions affected the new parties’ rights, and invited the parties to resubmit their motions. CFGC. Doc. # 261. The Gibson plaintiffs now join the CFGC /Adair plaintiffs in moving for injunctive relief.
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THE PLAINTIFFS HAVE STANDING Defendants previously argued the CFGC/Adair plaintiffs had no standing because no named plaintiff was on active duty. Defendants’ 3/9/02 Remand Opening Brief (“DefOpBr”) at 7-12, Defendants’ 5/1/07 Remand Reply (#257)(“Def.RR”) at 5-8. Plaintiffs showed that this Court had specifically found CFGC had standing as a representational plaintiff and could seek prospective and injunctive relief. CFGC /Adair Remand Reply (“Pl.Rem.Reply’) at 8-11. The Gibson plaintiffs include active duty chaplains, e.g., Gibson, Demy and Stewart. Consequently they suffer direct irreparable injury resulting from defendants’ Establishment Clause violations. See CFGC, 454 F.3d at 304. There can be no doubt as to plaintiffs’ standing.
RECENT OR CURRENT EVENTS BEARING ON THIS MOTION DefOpBr Exhibit 1identified six current Navy Catholic chaplains with a status of 4109, none of whom had qualified for retired pay because they did not have the required TIS. One of those, LCDR Erestain, now stationed at Bethesda Naval Hospital, will retire at the end of July at age 70, 10 years past the age at which he should have been separated. DefOpBr Exhibit 1 incorrectly shows his retirement eligibility as 2008. He makes the fourth 4109 allowed to illegally obtain a pension in their 70s since plaintiffs filed the original injunction motion in 2003. Plaintiffs took the depositions of Mr. Thomas Bush and Mr. Samuel Wyvill, whose declarations tried to justify the “Honorary Retiree” program which allegedly allow the 4109s to be “retired” without 20 years TIS and then recalled to active duty. Both admitted: (1) the applicable Department of Defense (DOD) directives and instructions mandate the Secretary of Navy to place all Reserve personnel into Reserve Component Categories defined by DOD including the Retired Reserve; (2) DOD defines only 5 Retired Reserve categories, all of which
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are defined in terms of eligibility for retired pay or entitlement to disability due to active service; (3) there is no category for those not entitled to retired pay, i.e., no Honorary Retiree category. Consequently, this motion’s injunctive request also seeks an order requiring the Secretary to comply with DOD’s instructions concerning retired categories.
STANDARD FOR AN INJUNCTION To warrant preliminary injunctive relief, the moving party must show (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction. E.g., Mova Pharm. Corp., 140 F.3d 1060, 1066 (D.C. Cir. 1998) (quoting City Fed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)) (internal quotation marks omitted). CFGC, 454 F.3d at 297. Plaintiffs have met this criteria, both in 2003 and today in 2007.
SUMMARY OF ARGUMENT This Memorandum shows plaintiffs have met all the criteria for an injunction. First, plaintiffs will succeed on their Establishment and Due Process Clause violation claims because the challenged practice is a clear denominational preference for which there is no compelling purpose or narrow tailoring and does not treat all chaplains equally. Even if such a purpose existed, defendants’ pattern and practice is not narrowly tailored because alternatives exist allowing defendants to meet the free exercise needs of DON’s Catholic personnel. The challenged practice also fails the endorsement and Lemon tests because it communicates an unmistakable message that Catholics are preferred and have a favored place in the Navy Chaplain Corps (“CHC”) and the Navy. Second, the Court of Appeals has already held that plaintiffs have shown irreparable harm by alleging defendants have violated the Establishment Clause. CFGC, 454 F.3d at 304.
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Third, an injunction will not harm defendants or interfere with their mission of meeting free exercise needs of DON personnel because no harm results from following the Constitution and defendants have established viable alternatives that are readily available. Navy directives order commanders to hire contract clergy or auxiliary chaplains where free exercise needs exist. This option has met defendants’ need for Catholic clergy and other faith group specific needs in the past when specific chaplains were not available to meet them.
Fourth, ordering the Navy to follow the Constitution is in the public interest. The Establishment Clause’s purpose is to preclude the divisiveness, animosity, factionalism and strife that follows religious favoritism preferring one religion over another. Courts have the constitutional authority and duty to confine other branches of government within their constitutional and statutory limits. I. THE UNDISPUTED FACTS AND EVIDENCE SHOW DEFENDANTS HAVE
BEEN OPERATING A SPECIAL PENSION PLAN SOLELY FOR CATHOLIC CLERGY, A CLEAR DENOMINATIONAL PREFERENCE The Following Facts Are Undisputed 1. In 2003, 10 U.S.C. § 14509 “Separation at age 60; reserve officers in grades below brigadier general or real admiral (lower half)”, (Exhibit 1, see comment on 2006 amendments at page 1), stated: Each reserve officer of the Army, Navy, Air Force, or Marine Corps in a grade below brigadier general or rear admiral (lower half) who has not been recommended for promotion to the grade of brigadier general or rear admiral (lower half) and is not a member of the Retired Reserve shall, on the last day of the month in which that officer becomes 60 years of age, be separated in accordance with section 14515 of this title.
2. Amendments to 10 U.S.C. § 14509 changed the age for separation from 60 to 62. Id.
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3. From May 1986 to 2005, SECNAVISNT 1120.4A (Exhibit 2), ¶ 6 established the “Basic qualifications” for appointment as a chaplain, including age:
6. Basic qualifications. To be eligible for appointment as a Chaplain Corps officer in either the active-duty or Reserve components…, the applicant must meet the following requirements:
*** b. Age. Must be able to complete 20 years of active commissioned service by age 60. The Deputy Chief of Naval Operations (Manpower, Personnel, and Training) (DCNO(MPT)) may waive the age restrictions up to age 62 for otherwise qualified applicants for appointment on the active duty list or in the Reserve component in [four] instances: 4. When plaintiffs filed their injunction motion in June 2003, defendants had a pattern and practice allowing Catholic Reserve chaplains to remain on active duty past 10 U.S.C. § 14509's mandatory separation from military service at age 60 for Reserve officers. a. At least 23 Catholic Reserve chaplains over age 60 were on active duty in June 2003, all of whom were on the active duty list (“ADL”); none were on the Reserve Active Status List (“RASL”) because the lists are mutually exclusive. Inj Mot Exhibits 8, 12. b.. Seven of the 23 Catholic chaplains over age 60 were 67 or older, four of whom were in their 70s. c. The vast majority of chaplains allowed to stay on active duty past their statutory separation ages are Catholics. “Does the Data Establish that the U.S. Navy Favors Roman Catholics?”, Expert Opinion by Harald R. Leuba, PhD. (Exhibit 3) at 2 and Table 1; 6, Tables 45. No Protestant liturgical or Non-liturgical chaplains, Reserve or Regular, were allowed to remain on active duty as a 4109. 5. In 2003 there was no authority to extend Reserve officers on active duty beyond § 14509's age 60 limitation. 10 U.S.C. § 14703, the only authority for extending Reserve officers who had
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not failed of selection to Commander and above, applied to Reserve officers on the RASL which excludes officers on the ADL. Inj Mot at 6 (incorporated by reference). 6. The seven Catholic chaplains over age 67 were given the status “4109", which is a Navy personnel status code for “Retired Reserve.” 7. No 4109 had the necessary 20 years time in service (“TIS”) to qualify for retired pay when given their 4109 status. Inj Mot at 8-9 and its FACTS 2-7. 8. No 4109 fit into any DOD defined Retired Reserve category. Fact No. 23 infra. 9. Prior to 2001, there was no statutory authority to extend or continue on active duty Reserve chaplains who had twice FOS. See Inj Mot Reply at 6.
a. Section 632 provided for the continuation of regulars who had twice FOS; b. § 14101 provided authority to continue on the RASL Reservists who had twice FOS; Inj Mot Reply, 13-15; c. No statute allowed for Reservists who had twice FOS to be continued on active duty until a statutory change in 2001; Id.; d. Defendants provided no evidence any of the Reserve chaplains retained past age 60 had ever been validly continued by a board authorized to extend Reservists on active duty. 10. All of the 4109s, past and current, entered active duty with age waivers. SECNAVINST 1140.7A requires persons granted age waivers acknowledge “[b]efore appointment” they “will be unable to complete 20 years of creditable service for retirement ....” ¶ 6.b. 11. OPNAVINST 1730.1D (Exhibit 4) requires commanders to employ civilian clergy when necessary to meet the command’s free exercise needs. This OPNAVINST replaced
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SECNAVINST 1730.G as the authority to employ civilian clergy when necessary to meet the command’s free exercise needs. 12. 10 U.S.C. § 1251(a) establishes 62 as the normal retirement age for Regular officers.
a. § 1251(c)(2) allows the Secretary to “defer retirement under subsection (a) of an officer who was appointed or designated as a chaplain if the Secretary determines that such deferral is in the best interest of the military department concerned ....”; b. § 1251(c)(3)(A) limits “deferment under this subsection” to “the first of the month following the month in which the officer becomes 68 years of age”, unless the exception in subsection (B) applies; c. § 1251(c)(3)(B) allows the Secretary to “extend deferment under this subsection beyond the date referred to in subparagraph (A) if the Secretary determines that extension of the deferment is necessary for the needs of the military department concerned. Such an extension shall be made on a case-by-case basis and shall be for such period as the Secretary considers appropriate.” 13. No statute allows the Secretary to authorize a chaplain to remain on active duty past age 67 for the purpose of qualifying for retired pay, i.e., obtaining a pension. 14. The challenged 4109 chaplains and other Catholics continued past their separation ages, past and present, qualify for a pension only by remaining on active duty past their statutory separation ages. 15. Prior to 2006, few non-Catholic have been allowed to remain on active duty past their required separation age. 16. Three of the original seven 4109s plaintiffs identified in 2003 retired with pensions while
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this issue was being litigated. Two other Catholics will reach the necessary 20 years time in service to qualify for a pension in 2007. One, LCDR Erestain, will retire July 2007. See DefOpBr Exhibit 1, p. 2. 17. Since the Inj Mot was filed in 2003, defendants granted two new Catholic chaplains 4109 status, neither met DOD’s Retired Reserve criteria since neither had the required TIS. 18. An October 1999 (fiscal year 2000) “Study on Religious Affiliation in the Department of Navy,” Exhibit 5, admitted “The Chaplain Corps has never conducted an in depth study of the religious affiliation of members in the Navy and Marine Corps,” id. at 2 (3d page of document). 19. Evangelical and Pentecostal/charismatic Christians form the largest non-Catholic faith communities in overseas Navy chapels where there are limited religious worship alternatives for DON personnel and their dependents. Declaration of CAPT James Poe, CHC, USN (Ret.). (“Poe”) (Exhibit 6), ¶ 14. 20. Both types of congregations have distinct worship styles. Id. at 11. 21. Although Evangelical and Pentecostal/charismatic Christians were the largest nonCatholic Christian congregations at the Navy bases in in Naples, Italy, and Rota, Spain, the CHC has routinely ignored their needs and failed to schedule chaplains with suitable backgrounds to replace chaplains who led these distinct congregations. Id. at ¶¶ 13-14. 22. The CHC has no means or program to identify the individual Free Exercise needs of DON personnel or identify special religious communities, e.g., Pentecostal/charismatic, whether in the States of overseas. Extracts of Depositi9on of CAPT Carter, CHC (Larsen v. U.S. Navy), (Exhibit 7) at [31:15-33:3], [59:6-23]. 23. DOD Directives (DODD) or Instructions (DODI) define the Retired Reserve solely in
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terms of entitlement to retired, retainer or disability pay. See IV.B. infra. II. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR CLAIM
DEFENDANTS’ 4109 PROGRAM VIOLATES THE ESTABLISHMENT CLAUSE Defendants’ practice maintaining Catholic chaplains on active duty past their statutory separation ages to qualify for retired pay, hereafter the “4109 Program”, violates every Establishment Clause test. This practice is and has been exclusively for Catholics since only Catholic chaplains (1) have consistently been continued past statutory separation ages and (2) are designated as 4109s to qualify them for retired pay, making the 4109 Program a per se denominational preference. The 4109 Program has three components described below, each employing a clear denominational preference. Each part of the 4109 Program fails strict scrutiny, the threepronged test of Lemon v. Kurtzman, 403 U.S. 602 (1971), and the reasonable observer test which the Supreme Court has used frequently to evaluate whether a challenged program communicates a message of favoritism or preference. See McCreary Co. v. ACLU of Kentucky, 545 U.S. 844, 125 S.Ct. 2722, 2740 (2005) (defining and applying the reasonable observer test). These tests are addressed below. Failing these tests renders immaterial the question whether a valid statutory basis for defendants’ Catholic pension system exists. A. Each of the 4109 Program’s Three Parts Demonstrates a Denominational
Preference The 4109 Program has three separate components enabling Catholic chaplains accessed or brought to active duty with age waivers to qualify for retired pay because they cannot reach the necessary TIS before statutory separation due to age. The first is an illegal system to bring chaplains on active duty who cannot complete 20 years TIS before statutory separation. This
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includes illegal age waivers and recalls to active duty. SECNAVISNT 1120.4A’s ¶ 6.b established a maximum age of 42 for chaplain applicants
providing the Deputy Chief of Naval Operations granted a waiver beyond the normal age limitation of 40. Age 40 enabled a reservist to qualify for retired pay with 20 years TIS before § 14509 mandated his separation at age 60. The age 42 maximum corresponded to the normal separation age for Regulars but also allowed a reservist to achieve 18 years TIS because § 12686 allowed “Reserve or active duty within two years of retirement eligibility” to continue on active duty for an additional two years until he qualified for retired pay. SECNAVISNT 1120.4A provided no authority to exceed the age 42 upper limit.
CARE board records and Vol. X biographical data show defendants operated an unofficial policy to grant age waivers beyond age 42 without authority to do so. Exhibit 8 is a list of chaplains accessed and/or brought to active duty from FY86-01 at ages which will not allow them to get 18 years TIS before they had to be separated at age 60. This unofficial policy was primarily for Catholics until FY2001 when chaplain shortages forced the CHC to provide more non-liturgical clergy age waivers.
Exhibit 9, the total number of age waivers and percentages by FGC from FY 86 to FY982001, shows non-Catholics are a minority (8%), non-liturgicals are a super minority (4%, one half that of Liturgical Protestants) with Catholics comprising 85-90% of the waivers. Exhibit 9 also shows the percentage of Catholic age waivers in three categories: (a) age 42-46, -about 38% - a Catholic could get 20 years TIS without needing to become a 4109 at age 67; (b) age 47-56 about 53% - a Catholic would spend half his 20 year career as a 4109; and (c) age 57 and above about 7% - more than ten years as a 4109. Over half of the Catholics accessed or brought to
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active duty with age waivers were over age 46 requiring they be granted 4109 status to complete 20 years TIS to obtain retired pay. This is itself a denominational preference
The second component is an illegal policy continuing Catholic Reservists on active duty who should have been separated at age 60, now age 62. Material defendants provided in discovery shows only Catholic Reservists were allowed to continue on active duty past age 60. Inj Mot Exhibits 8-12. Many of these were LTs and LCDRs who had failed of selection and were not qualified to be continued until age 67 under 10 U.S.C. § 14507.
The third component is the process of designating as 4109s Catholic Reservists who have not qualified for retired pay at age 67, contrary to DOD’s Directives and Instructions. Only Catholic Reservists ineligible for retired pay have been designated 4109s.
B. Strict Scrutiny of the 4109 Program Is Mandated “When a denominational preference is at issue, Larson v. Valente, 456 U.S. 228 (1982), supplies the analytic framework for evaluation of [plaintiffs’] contentions. Larson teaches that, when it is claimed that a denominational preference exists, the initial inquiry is whether the law facially differentiates among religions.” Hernandez v. C.I.R., 490 U.S. 680, 695 (1989); Children's Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1090 (8th Cir. 2000), cert denied, 532 US 957 (2001) (“In considering appellants' facial challenge, we initially must determine whether section 4454 discriminates among religious sects. If so, we apply strict scrutiny review under Larson v. Valente, 456 U.S. 228 (1982)”). Strict scrutiny is not limited to alleged statutory denominational preferences. “On the contrary we have expressly required ‘strict scrutiny’ of practices suggesting ‘a denominational preference,’ Larson, 456 U.S. at 246, in keeping with ‘the unwavering vigilance that the Constitution requires’ against any violation of
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the Establishment Clause.” County of Allegheny, 492 U.S. 573, 608-09 (1989)(quoting Bowen v. Kendrick, 487 U.S. 589, 623 (1988) (O’Connor, J. concurring) (emphasis added)). The law of this case follows Hernandez and County of Allegheny: strict scrutiny applies to any challenged practice Plaintiffs can demonstrate “suggests a denominational preference.” Adair v. England, 217 F.Supp.2d 9, 14-15 (D.D.C. 2003).
Ignoring the law of the case, defendants’ recent CFGC/Adair injunction briefing suggested a decision in Larsen v. U.S. Navy, 486 F.Supp.2d 11 (D.D.C. 2007), applying the relaxed standard of Goldman v. Weinberger, 475 U.S. 503 (1986), should apply. Def.RR (CFGC Doc. No. 257) at 18. Larsen is inappropriate; it did not review a denominational preference because Larsen found those plaintiffs did not have standing to challenge the denominational preferences established in defendants’ Thirds Policy accession goals. This Court’s well reasoned analysis specifically rejected the Goldman standard in denying in part defendants’ motion to dismiss, finding Goldman addressed the “Free Exercise Clause”, not the Establishment Clause. Adair v. England, 183 F.Supp.2d 31, 50-52 (D.D.C. 2002); see also Goldman, 475 U.S. at 504 (“Goldman contends that the Free Exercise Clause ....”) (cited by Adair, 183 F.Supp.2d at 51), 509 (same quote). Adair correctly holds the Supreme Court has never allowed any reduced standard for Establishment Clause cases, 183 F.Supp.2d at 52, following but not citing this Circuit’s precedent.
The D.C. Circuit has made it clear that Lemon or strict scrutiny is the law of the Circuit, regardless whether Congress, the military or some other form of government is accused of violating the Establishment Clause. “The touchstone for evaluating church-state relations under the Establishment Clause, is the test enunciated by the Supreme Court in Lemon v. Kurtzman.”
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United Christian Scientists v. First Church of Christ Scientist, 829 F.2d 1152, 1161 (D.C. Cir. 1987). No intervening decision has changed this Rule. United Christian Scientists is especially instructive and controlling because it reviewed a law passed under the Constitution’s plenary grant of exclusive patent and copyright authority to Congress in Article 1, § 8, clause 8. The same section, clauses 11-16, contains Congress’s authority to organize and regulate the Armed Forces. While courts often defer to Congress’s authority in such special areas, United Christian Scientists did not defer, applied Lemon and held Congress violated the Establishment Clause by granting to one branch of the Christian Science Church exclusive control over its primary doctrinal publication. 829 F.2d at 1154, 1168, 1171.
United Christian Scientists held Lemon’s approach was mandated, id. at 1161. It then distinguished between Larson’s strict scrutiny of facial discrimination among religions and Lemon’s tri-part test, which was “intended to apply to laws affording a uniform benefit to all religions, not to provisions like the statute in [Larson] that discriminate among religions.” Id. at 1163 n. 49 (quoting Larson, 456 U.S. at 252). United Christian Scientists applied Lemon rather than Larson only because strict scrutiny had not been briefed or raised by the parties in the district court. Id. It found none of Congress’s proffered concerns for the law were “clearly secular,” id. at 1165, Congress had fused civil and religious power, and placed its “official stamp of approval” on one set of religious views. Id. at 1165-66. If “Congress ... may not exceed the bounds of benevolent neutrality toward religion”, id. at 1166, defendants may not do so either.
The Supreme Court has not confronted an Establishment Clause challenge to a military practice. However Anderson v. Laird, 466 F.2d 283 (D.C. Cir.), cert denied, 409 U.S. 1076 (1972), did so, reviewing the constitutionality of the Service Academies’ mandatory chapel
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requirements for all cadets and midshipmen. The District Court had deferred to the Academies’ military expertise arguments, id. at 285 ("the court accorded great weight to the opinions and judgments of the military personnel concerned with officer training”), 290, 293 (“deference to the unique role of the military in our society”), but the D.C. Circuit rejected deference as incompatible with the Establishment Clause. Id. at 285 (“These regulations ... exceed the constitutionally permitted scope of governmental power.”), 290 (“This principle was mistaken by the District Court”), 293 (“language of the regulations reveals” Establishment Clause violation). Anderson does not cite Lemon because Lemon was decided 20 days after Anderson’s oral argument. However, Anderson’s analysis follows Lemon’s, as seen in the opinions by both Judges Bazelon and Leventhal, including discussion and application of the “purpose and effect test” developed in McGowan v. Maryland, 366 U.S. 420, 453 (1961); Torcaso v. Watkins, 367 U.S. 488, 489-90 (1961); Engel v. Vitale, 370 U.S. 421, 424 (1962), and others, Anderson, 461 F.2d at 291-93, and replicated in Lemon’s first two tests.
Anderson recognized that religious issues did “not involve programs vital to our immediate national security, or even to military operations or disciplinary procedures” and held “it is for this Court to assess that decision [to require mandatory chapel participation] in constitutional terms.” Id. at 296. Rejecting the District Court’s holding “that all First Amendment rights must bend when they conflict with military interests,” Anderson held “[t]he Supreme Court’s interpretations of the Establishment Clause refer to no overriding secular interests which could ever justify a government’s imposition of those religious activities which the Clause was written to abolish.” Id. at 290. Judge Leventhal’s concurrence found no military necessity justifying an establishment of religion, id. at 297, or a compelling government purpose,
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id. at 298. In effect, he applied a strict scrutiny analysis. See, e.g., id. at 302 (various references to the requirement the government show its “interest is compelling”).
C. Defendants’ Pension Qualification Program for Overage Catholic Chaplains Fails Strict Scrutiny
The 4109 Program, allowing Catholic chaplains whom Title 10 required and requires to be separated to remain on active duty to qualify for retired pay, is a “denominational preference on its face” because it has been limited to Catholics. With the recent exception for a rabbi, well after the Inj Mot was filed and remanded by CFGC, no other denomination benefitted or benefits from defendants’ challenged practice, because no other denomination has been included in defendants’ overage chaplain pension program. Defendants’ practice has clearly said, “Only Catholics need apply.”
Strict scrutiny assumes a practice is unconstitutional and places the burden on the defendant to show the practice is narrowly tailored to achieve a compelling governmental purpose. Lac Vieux Desert Band of Lake Superior Chippewa v. Michigan Gaming Control Board, 276 F.3d 876, 879 (7th Cir.) (“We start by presuming the statute is unconstitutional. Detroit can overcome that presumption by proving that the ordinance is necessary to serve a compelling state interest and narrowly drawn to achieve that interest.”), cert denied, 536 U.S. 923 (2002). Defendants can show neither.
1. The 4109 Program has no compelling purpose The CHC’s purpose is to enable DON personnel to “exercise their right under the Free Exercise Clause to practice [their] freely chosen religion”, Katcoff v. Marsh, 755 F.2d at 223, 234
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(2d Cir. 1985), and to avoid violating the neutrality requirement under the Establishment Clause.2 [I]f the [DON] prevented [its personnel] from worshiping ... by removing them to areas where religious leaders of their persuasion and facilities were not available it could be accused of violating the Establishment Clause unless it provided them with a chaplaincy since its conduct would amount to inhibiting religion.
Id. at 232. The question before the Court is how does defendants’ practice of allowing only Catholic chaplains to remain on active duty past their statutory separation age advance or meet the statutory and constitutional purpose for a Chaplain Corps? If defendants based this program on specific identified free exercise needs, complied with existing statutory and regulatory procedures, and made this program available to all denominations based on specific objective criteria, this case would be entirely different. Defendants have never done these things. The purpose of this challenged practice is evident in its structure and exclusivity: to prefer, advance and benefit Catholic chaplains by providing overage Catholic priests a pension program.
Defendants have produced no documents or testimony explaining why only Catholics must be continued on active duty until they acquire the necessary TIS to qualify for retired pay, well past the statutory age separation age limits Congress determined in the Defense Officer Personnel Management Act of 1980 (“DOPMA”) were necessary to keep the Armed Forces fit. See 1980 U.S. Code and Congressional Administrative News (USCCAN ), 6333, 6337-39 (explaining DOPMA’s purpose to provide for a young, fit officer corps). Defendants cannot provide a compelling purpose under either the old (pre CFGC) or the current regulatory scheme.
Assuming arguendo the compelling purpose is to meet Catholic religious free exercise needs, several questions must be answered to verify the veracity of the disputed claim and
2 Congress established the Chaplain Corps by statute. All government branches must operate in accord with the Constitution. United Christian Scientists, 829 F.2d at 1162.
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purpose. First, are DON’s Catholics suffering a shortage of Catholic priests? In other words, are DON’s Catholics worse off than their civilian counterparts? The answer is NO! DON’s Catholics do better than civilian Catholics. Dr. Leuba’s analysis, “Too Many Catholic Priests?” (Exhibit 10), comparing national civilian religious demographic data with military religious data shows DON’s Catholics actually have one half the priest-parishioner ratio civilian Catholics face. Catholic priests are about 9% of all civilian clergy, but are about 25% of the CHC. Leuba at 1. The ratio of Catholic clergy to those served is also “twice as high for Catholics in the Navy as for Catholics in America at large.” Id. at 4. Dr. Leuba’s analysis is based on data produced by the annual Yearbook of American and Canadian Churches, a well recognized source of religious demographic information. Dr Leuba examined four perspectives of the issue, id., 1-4, and in each case, DON’s Catholics do better than their civilian counterparts.
Second, do defendants have a program that can identify and quantify DON’s free exercise needs? Again the answer is NO! An October 1999 (fiscal year 2000) “Study on Religious Affiliation in the Department of Navy,” (Exhibit 5) admitted “The Chaplain Corps has never conducted an in depth study of the religious affiliation of members in the Navy and Marine Corps,” id. at 2 (3d page of document). Defendants do not identify officer faith group preferences3, id. at pg.4.
Third, are there any other options or resources to meet or minimize the professed need? This question concerns or overlaps the “narrow tailoring” requirement but is also related to the
3 Defendants provided some data in discovery which was supposed to be Navy officer faith group preferences, but the numbers did not add up and made no sense. Defendants were asked to explain the numbers provided but have yet to do so or provide accurate officer preference data.
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“purpose” issue since other options would show there is no compelling purpose for this challenged practice. Here the answer is Yes! When the Inj Mot was filed, SECNAVINST 1730.G provided commands authority to employ contract civilian clergy or auxiliary chaplains when necessary to meet the command’s free exercise needs. OPNAVIST 1730.1D (Exhibit 4) replaced SECNAVINST 1730.3G. 1730.1D’s ¶ 5.e.(5), “Religious Ministry Requirements”, directs commanders ((g) “Commanders shall”) to hire contract clergy or auxiliary chaplains to provide religious services when no chaplain is available to meet a specific free exercise need. Assuming arguendo defendants had a valid secular objective, this “valid secular objective can be readily accomplished by other means.” Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 123-24 (1982).
Moreover, these retained chaplains are not filling operational billets in Iraq or Afghanistan, they occupy places where civilian clergy are readily available to meet DON’s Catholic needs. For example, LCDR Erestain is stationed at Bethesda Naval Hospital where many Catholic priests are available in the surrounding community.
2. The 4109 Program fails strict scrutiny because it is not narrowly tailored to achieve a compelling government purpose
To be narrowly tailored means that the practice or means defendants are using to achieve their compelling governmental purpose is so constructed and conducted that it does not endanger or invite any of the abuses which the Establishment Clause was designed to prohibit. Narrowly tailored also means that the procedure used is neutral, neither favoring nor disfavoring any denomination or system of beliefs. Defendants’ practice cannot meet this test because it favors only one denomination and disparages others as part of its normal practice, does not treat
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all religious groups equally, and there are alternatives available that do not require a practice which communicates denominational preference or provides financial support to a single denomination. The reasonable observer, see E infra, would recognize the need to hire a religious person to perform a religious ceremony to meet a free exercise need. The requirement to hire contract clergy under OPNAVINST 1730.1D to met free exercise needs shows the 4109 Program is not narrowly tailored because it is not focused to meet specific needs. Instead, separating nonliturgical and Liturgical Protestant chaplains in the face of chaplain shortages, e.g., plaintiffs CHs Belt and Porter-Stewart for FOS while retaining FOS Catholics who had longer to serve to get to retirement than some of those discharged, shows defendants’ practice clearly communicates a preference for Catholics and hostility to non-Catholics as shown below.
Larson examined the legislative history of a statute challenged under the Establishment Clause that required registration for some churches but not others. 456 U.S. at 230-34. It found “that the italicized language [of the statute in question] would bring a Roman Catholic Archdiocese within the Act, that the legislators did not want the amendment to have that effect, and that an amendment deleting the italicized clause was passed in committee for the sole purpose of exempting the Archdiocese from the provisions of the Act.” Id. at 254. The Court described this as “religious gerrymandering”. Id. at 255. The statute’s “express design [was] to burden or favor selected religious denominations,” and was “not closely fitted to the furtherance of any compelling governmental interest.” The Court found the statute and government were not neutral and the statute violated the Establishment Clause. Id. That is the case here.
This case is like Board of Ed. of Kiryas Joel v. Grumet, 512 U.S. 687 (1994), which found the state’s creation of a special school district for a village whose citizens were all Satmar
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Jews violated the Establishment Clause. Because the legislation benefitted one sect, id. at 704 (“Here the benefit flows only to a single sect”), the Court rejected the normal presumption that the action of a state legislature was constitutional. The Court also rejected an accommodation defense because the “proposed accommodation singles out a particular religious sect for special treatment,” violating the Constitution’s mandate of religious neutrality. Id. at 706.
That is the case here. The practice favors a single denomination. Until very recently, defendants never continued chaplains of any denomination past statutory separation ages except Roman Catholic.
Defendants are currently short chaplains and they were short chaplains when they discharged Adair plaintiff CH Belt and Gibson plaintiff CH Porter-Stewart, who were closer to reaching their 20 years TIS than some of the continued chaplains. Yet the only chaplains defendants have continued on active duty are Catholic. This is a per se preference with no purpose except to grant Catholics special privileges.
D. The Challenged Practice Violates the Lemon Test4 “Under the Lemon analysis, a [] practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion.” County of Allegheny, 492 U.S. at 592 (citing Lemon, 403 U.S. at
4 Katcoff v. Marsh, 755 F.2d 223, 232 (2d Cir. 1985), declined to apply the Lemon test in reviewing an Establishment Clause challenge to the Army Chaplain Corps because the Chaplain Corps advanced religion and entangled the government “with religious accrediting bodies.” Katcoff was decided before Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987) explained the difference between accommodation and establishment. Amos shows a chaplaincy administered in a neutral manner will pass Lemon’s test.
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612 – 613). Governmental action that unconstitutionally advances religion includes actions whose purpose or effect has endorsed or advanced a specific religion or religion in general, “attempting to convey a message that religion or a particular religious belief is favored or preferred”, or favoring religious belief over disbelief. Id. at 292-93 (citing various cases and quoting Wallace v. Jaffree, 472 U.S. 38, 70 (1985)). Defendants’ 4109 Program certainly “touches upon religion” and both advances a specific religion and financially supports it.
1. The 4109 Program has no valid secular purpose On its face, the 4109 Program’s only purpose is to allow Catholic chaplains whose separation 10 U.S.C. §§ 14509 and 1251 require when the chaplains reach statutory separation age to remain on active duty until they complete the 20 years TIS required to qualify for the retired pay they acknowledged they were ineligible for when they were commissioned with (illegal) age waivers. FACT 10. As shown above in C.1 and incorporated herein by reference, defendants have failed to show a compelling purpose because they have not identified DON’s free exercise needs and shown DON Catholics are worse off than their civilian counterparts. Defendants’ concern for Catholic chaplains, demonstrated by the overage pension program for Catholics which ignores the law and violates the Constitution, stands in sharp contrast with defendants’ gross failure to meet the free exercise needs of faith specific Nonliturgical communities in overseas locations. CAPT James Poe was the Regional Chaplain/Religious Ministries Program Director for the Commander, Naval Region Europe (CNRE). Declaration of James F. Poe, CHC, USN, (Ret.) (Exhibit 6), ¶ 4. He describes the specific free exercise needs of two different, vibrant Non-liturgical Protestant Evangelical and Pentecostal/charismatic communities in Naples, Italy, id., ¶¶ 13, 14, and Rota, Spain, id., ¶ 21.
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Although he made the CHC aware of the need to provide appropriate replacement chaplains for these congregations, id. ¶¶ 25-26, the CHC ignored these communities’ free exercise needs. Id., ¶¶ 13, 15-21. Instead, they replaced the evangelical and Pentecostal chaplains at both locations with chaplains totally unsuited for those congregations’ worship needs. Id. Defendants’ efforts show they prefer Catholics contrary to the Constitution, while their different treatment of Nonliturgicals at Rota and Naples “illustrate an underlying indifference, if not hostility, to the free exercise needs of non-liturgical faith groups, especially those considered Evangelical.” Poe at ¶ 23. The contrast shows the CHC’s 4109 Program’s purpose is to benefit Catholics, a religious purpose, rather than meet all of DON’s free exercise needs, a secular purpose.
There can be no valid secular purpose when defendants have other options available which do not require financial support to and favoritism for one denomination. See Larkin, 459 U.S. at 123-24 (“valid secular objective can be readily accomplished by other means.”).
2. Defendants’ 4109 Program fails Lemon’s second prong by advancing the Catholic religion and inhibiting the religion of others
Defendants can not pass the second prong of Lemon’s criteria, i.e., the 4109 Program “must neither advance nor inhibit religion.” The challenged practice clearly advances Catholic interests, and benefits Catholic clergy and the Catholic Church financially. The 4109 Program provides other benefits especially important to older persons such as medical care, a burden the Catholic Church would have to bear without the 4109 Program. Defendants cannot deny they are advancing the Catholic religion because until recently, the 4109 Program had allowed only Catholics to remain on active duty to obtain pensions. As shown below, the 4109 Program communicates defendants’ hostility to other religions and faith groups because their
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chaplains are denied the same opportunities and benefits, even in the face of current chaplain shortages. “Here the benefit flows only to a single sect”, a forbidden preference. See Grumet, 512 U.S. at 704. Such hostility is not neutral and inhibits other religions.
Defendants have consistently admitted they do not collect any data on specific religious community needs like Rota and Naples. See, e.g., Carter Deposition (Exhibit 7), [32:18-23] (not concerned about non-Catholic FGCs or communities); [59:6-23].. Defendants have demonstrated callous indifference to religious free exercise needs of Non-liturgicals, e.g., the Evangelical and Pentecostal communities at Rota and Naples. See Poe at ¶¶ 13-29. They cannot argue here there is a need or legitimate purpose for retaining overage Catholic chaplains because since 2003, defendants have presented no data on Catholic or other communities’ needs. Ms. Berto’s Declaration, DefOpBr Exhibit 1, stated the 4109s met a Catholic requirement. This is contrary to defendants’ argument in Larsen that the CHC had no requirements for any denominations, otherwise there would have been goals.
The 4109 Program is like the provisions of New York’s kosher food fraud statutes struck down by Commack Self-Service Kosher Meets, Inc., v. Weiss, 294 F.3d 415 (2d Cir. 2002), cert denied, 537 U.S. 1187 (2003). Commack found the challenged provisions preferred “the dietary restrictions of Orthodox Judaism over those of other branches” and “the challenged laws discriminated in favor of the Orthodox view regarding the dietary requirements of kashrut.” Id. at 430. This preference put the state’s “imprimatur on the religious views of the one [sect] to the exclusion of others.” Id. The 4109 Program benefits only Catholics; no other denomination has been allowed to keep its clergy on active duty past their statutory separation ages for the purpose of qualifying for a pension. In fact, defendants separated Adair plaintiff CH Belt and Gibson
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plaintiff CH Porter-Stewart in March 2006 although they were younger and needed only a few years to come within the safe harbor of 18 years service, while retaining Catholics with many years left before becoming eligible for retirement and adding others to the 4109 category.
Defendants have continued the 4109 Program despite being on notice it was a religious preference, communicated a message of prejudice, and had no statutory or regulatory foundation for the practice. They have continued to defend their practice with bogus reasoning such as citing SECNAVINST 1820.2B as authority despite the fact the instruction, by its title and context, excludes active duty personnel from its coverage. See plaintiffs’ Inj Mot Reply at 19-20.
3. Defendants’ 4109 Program unconstitutionally entangles the Navy and religion
Defendants’ unconstitutional entanglement with one specific denomination, i.e. Catholics, is readily apparent. The very act of providing a single program that benefits only Catholics essentially makes the government an agent for this denomination. Commack found the state’s “imprimatur” on the Orthodox view of what is kosher entangled the state with religion. Id. at 430. Here, the preference exhibited by the 4109 Program is not merely symbolic; the challenged practice financially aids one denomination by providing a pension program and other benefits to members of its clergy, a benefit the Church itself would have to provide were it not for defendants’ largess. Providing chaplains to meet individual free exercise needs is accommodation, but favoring one religion with an over-age pension qualification program which provides substantial financial support is forbidden establishment of religion. See Amos, 483 U.S. at 327.
D. The 4109 Program Fails the Reasonable Observer Test
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1. The reasonable observer examines the 4109 Program’s history and purpose
Recent Supreme Court precedents tend to collapse Lemon’s standard three-part test into a two-part test known as the “endorsement test.” This combines Lemon’s second and third prongs, the result and entanglement questions, into the question whether the objective or reasonable observer would perceive the challenged governmental action as an endorsement or preference for or against religion, a specific religion, or a religious viewpoint. For example, Santa Fe Independent School District v. Doe, 530 U.S. 290, 308 (2000), found an objective observer would perceive student led prayer at school athletic events was an endorsement of religion. County of Allegheny, 492 U.S. 573 (1989) asked whether the reasonable observer would perceive as religious endorsements the displays of (1) a crèche on the main staircase of the county courthouse and (2) a menorah in another display including other seasonal symbols. The Court found the placement of the crèche communicated endorsement because of its location, 492 U.S. at 599-602, whereas the menorah passed constitutional review because it was merely one of several holiday symbols in a group. Id. at 613-16, 620-21. In each case the Court reached its answer after examining the message the practices communicated and the practices’ context.
McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005), asked whether an objective observer would conclude the display of the Ten Commandments with other historic documents in two county courthouses communicated governmental endorsement of religion. McCreary County held courts should analyze the purpose of the challenged practice from the viewpoint of the reasonable or objective observer. The McCreary petitioners argued the Court should ignore the history of the challenged displays and only look at the last iteration of the display. 545 U.S. at
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863-66, 871-72. The Court rejected this argument and held the “objective observer’s eyes” were to look closely at the historical facts which often revealed the purpose behind the challenged practice or statute. Id. at 862. The Court also rejected petitioner’s attempt to trivialize the purpose inquiry: “The Counties would read the cases as if the purpose enquiry were so naive that any transparent claim to secularity would satisfy it, and they would cut context out of the enquiry, to the point of ignoring history, no matter what bearing it actually had on the significance of current circumstances.” Id. at 863-64. “We hold that the Counties’ manifest objective may be dispositive of constitutional enquiry, and that the development of the presentations should be considered when determining its purpose.” Id. at 850. The Court emphasized “the purpose needs to be taken seriously under the Establishment Clause”, and courts should reject sham reasons. Id. at 874.
Accordingly, plaintiffs will first address defendants 4109 Program from the reasonable observer’s viewpoint, looking at its history, obvious purpose and message. See, e.g., id. at 871-72 (district court found the previous iterations of the challenged display violated the Establishment Clause because those iterations had an improper purpose, the advancement of religion).
2. The reasonable observer would conclude the 4109 Program is an illegal preference designed solely to advance Catholic interests
McCreary held the objective or reasonable observer must take into account both the complete history and the context of the challenged practice since the purpose of a challenged practice often becomes evident in the practice’s history. 545 U.S. at 866. This means looking at the purpose for which defendants instituted their overage Catholic pension system, a purpose manifest by several factors. First, the reasonable observer would know the defendants admitted
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“The Chaplain Corps has never conducted an in-depth study of the religious affiliation of members in the Navy and Marine Corps.” Exhibit 5.
Second, the objective observer would know defendants acknowledge DON’s free exercise needs have not been identified and they play no part in their chaplain accession system or in the detailing process. FACT 22. The objective observer would know there can be no justification for keeping chaplains of a specific faith past their statutory separation dates without an understanding and quantification of religious needs and a standard against which to measure them. As Dr. Leuba’s analysis (“Too Many Priests?” at 4 (Exhibit 10) shows, DON’s Catholics do better in terms of the ratio of Catholic members to priest than do their Catholic civilian counterparts. Third, the objective observer would know until very recently the 4109 Program was almost exclusively for Catholics. FACT 4c. The extension of a single rabbi for a few years cannot undo defendants’ past history of Catholic exclusivity and the fact the primary beneficiaries (if not the sole beneficiaries) are Catholic chaplains and the Catholic Church.
Fourth, since the 4109 status has been limited solely to Catholics during its history, the objective observer would know the purpose of the program was to benefit Catholic chaplains.
The reasonable observer would conclude from the 4109 Program’s history and the factors surrounding it that its only purpose is to benefit Catholic chaplains and thereby benefit the Catholic Church by providing a pension and continued medical benefits for some of its elderly clergy. See II.B.1. above.
[T]he Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying
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message to adherents that they are insiders, favored members of the political community. Wallace v. Jaffree, 472 U.S., at 69, (O'CONNOR, J., concurring in judgment) (internal quotation marks omitted). The objective observer’s analysis of defendants’ practice would also conclude defendants have established Catholicism as the Navy’s preferred religion. There is no other explanation; despite being put on notice, defendants have closed their eyes to the law and very clear Supreme Court precedent that denominational preferences are subject to strict scrutiny. Any reasonable observer would understand defendants’ 4109 Program fails strict scrutiny given the history of its practice, its limitation to one denomination, the lack of statutory authority, and defendants’ failure to identify specific religious needs and a compelling purpose. The objective observer would also conclude defendants’ practice communicates a message of favoritism to Catholics and hostility to Non-liturgicals. “When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs.” Lee v. Weisman, 505 U.S. 577, 606 (1992). This is manifest in defendants’ deliberate extension of only overage Catholic chaplains beyond their statutory age limit, while discharging non-liturgicals such as CHs Belt and Porter-Stewart, and showing indifference or active hostility to the Pentecostal/charismatic and evangelical Protestant congregations in Naples and Rota, see Poe Declaration at ¶¶ 13-29. The objective observer would also note the obvious message of preference the practice communicates. Protestant churches send their young men and women to serve as chaplains because military service reflects Congress’s desire for a young force able to endure the hardships
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inherent in military service. Chaplains Belt and Porter-Stewart gave their youth to the Navy and then were discarded. The 4109 Catholics give their youth to their Church, then when they are older and not able to compete with younger chaplains, they give their old age and limited ability to the Navy. By accepting this offer, defendants communicate the message old Catholics are of more value than young non-Catholics. If defendants need priests to say Mass, they can hire contract clergy or auxiliary chaplains to replace these 4109 Program priests at minimal cost. III. PLAINTIFFS WILL SUCCEED ON THEIR CLAIM THE CHALLENGED
PRACTICE VIOLATES DUE PROCESS The Fifth Amendment’s Due Process Clause has an equal protection component which requires defendants to treat similarly situated chaplains equally. “[T]he Fifth Amendment requires the Navy to treat non-liturgical Christian chaplains in the same manner that it treats liturgical Protestant chaplains.” Adair, 183 F.Supp.2d at 53. This Court has noted previously, “the Supreme Court has held courts must apply strict scrutiny to any policy or practice that involves a denominational preference.” Id. (citing County of Allegheny, 492 U.S. at 608-09; Larson, 456 U.S. at 246). On its face, the 4109 Program does not treat all chaplains equally. It allows overage Catholics, including those with multiple FOS, to remain on active duty to accrue sufficient TIS service to qualify for a pension, while discharging Non-liturgicals. Adair plaintiff CH Belt and Gibson plaintiff CH Porter-Stewart were discharged for FOS although they were much younger and needed fewer years to come within § 12686's safe harbor of 18 years service than the Catholics with FOS who were retained. Few non-Catholics have been allowed to remain on active duty past statutory separation age and no non-Catholic has been granted 4109 status.
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Defendants failed to identify any non-Catholic chaplain on active duty over age 62 in their 2003 interrogatory responses. This is an example of the religious gerrymandering specifically condemned in Larson, 456 U.S. at 255. The practice in this case is the same one-way government benefit to a religious group Grumet found offensive to the Constitution. 512 U.S. 687, 703 (1994) (“Here the benefit flows only to a single sect”). As shown in II.A above, defendants have no compelling purpose nor can they show the means they have chosen, a program until recently limited to Catholics that violates Congress’s specific determination as to separation ages, is narrowly tailored to achieve any government purpose. IV. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR CLAIM
DEFENDANTS’ CONTINUATION OF CATHOLIC CHAPLAINS BEYOND STATUTORY SEPARATION AGES IS WITHOUT AUTHORITY A. The Secretary of Defense Has Limited the Secretary of Navy’s Authority to
Place Reservists in the Retired Reserve to Those Who Meet Specific Criteria Defendants have argued 10 U.S.C. § 264 gives the Secretary of Navy authority to place in the Retired Reserve chaplains who have not qualified for receipt of Retired Pay. DefOpBr at 1517 and Def. Reply at 13-14. This is false as a matter of law. 10 U.S.C. § 10141 creates only three Reserve Component Categories (“RCC”): Ready, Standby and Retired Reserve (the “RRC”). 10 U.S.C. § 10154 defines the Retired Reserve as those eligible for retired pay under various statutes addressing each service in § 10154(a), and “Reserves who have been transferred to the Retired Reserve, retain their status as Reserves, and are otherwise qualified” in § 10154(b). Title 10 does not define “otherwise qualified” but 10 U.S.C. § 113(b) gives the Secretary of Defense authority to establish regulations governing the Reserve forces including the Retired Reserve. The Secretary of Defense has exercised that authority and has issued four DOD Directives
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(DODD) and DOD Instructions (DODI) that cover four areas addressing all aspects of the Retired Reserve: “Uniform Reserve, Training and Retirement Categories Administration”, DODI 1215.19 (dated 12/12/2000, which is relevant to the time period for the actions addressed in this motion), (Def.RR Exhibit A) (incorporated by reference), which has been replaced by DODI 1215.06 (dated 2/7/07 with the same title) (Exhibit 11); “Assignment to and ... Transfer to the Retired Reserve”, DODI 1200.15 (dated 9/18/97) (Exhibit 12); “Management and Mobilization of Regular and Reserve Retired Military Members”, DODD 1352.1 (dated 7/16/05) (Exhibit 13); and “Employment of Retired Members of the Armed Forces” DODD1402.1 (dated January 21, 1982, still listed by DOD as a valid authority), (Exhibit 14).
Each of the four regulations requires defendants to comply with the DODDs and DODIs. For example, Paragraph 5.2.1 of DODI 1215.19 direct’s the Secretary to “[d]esignate all Reserve Component members,” including the 4109s, “in a RCC ... in accordance with criteria established in enclosures 2 and 4”; Enclosure 2, ¶ E2.2.1.4, defines five “Retired Reserve Categories” (Def.RR Exhibit A. at 30), mirroring the five categories and qualifications defined in ¶ 6.5.4.4, see below. DODI 1200.15, ¶ 5.3, limits the Secretary’s authority to transfer personnel to the Retired Reserve to 3 cases; the two relating to those eligible for retired pay are mandatory (“shall”), the one case addressing disability is permissive. DODD 1352.1 states “The Secretaries of the Military Departments ... shall ensure plans for management and mobilization of military retirees are consistent with this directive”, ¶ 5.3 (“RESPONSIBILITIES”), and defines the Retired Reserve, linking it to eligibility for retired pay. These DODIs and DODDs, by using the word “shall”, make it clear the Service Secretaries must comply with the DODIs’ and DODDs’ provisions They provide no room for the Secretary of Navy not to comply or discretion to do
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anything other than what the DODI directs. Mr. Bush testified that defendants’ compliance with
the DODIs is mandatory. Deposition of Thomas Bush (Exhibit 15) at [95:11-97:21].
B. DOD’s Definition of the Retired Reserve Excludes the 4109s
Each DODI and DODD has defined the Retired Reserve in a uniform, historically
consistent manner, linking eligibility for or assignment to the Retired Reserve with eligibility for
retired, retainer or disability pay.5 A chaplain not entitled receive payment for prior active service
is not eligible for transfer to, or listing in, or inclusion in the Retired Reserve. Five categories
constitute the Retired Reserve as defined by DOD.
The Retired Reserve consists of the following categories: 6.5.4.4.1 Reserve members receiving retired pay under Chapter 1223 of reference(e) [Title 10]. 6.5.4.4.2 Reserve members who have transferred to the Retired Reserve after completing the requisite qualifying years creditable for retired pay under 10 U.S.C. Chapter 1223 (reference(e)), but who are not yet 60 years of age, or are age 60 and have not applied for retired pay. 6.5.4.4.3 Reserve members retired for physical disability under Sections 1201, 1202, 1204, or 1205 of reference (e). Members who have completed the requisite years of Military Service creditable for non-regular retired pay under Chapter 1223 of reference (e) or are 30-percent or more disabled and otherwise qualified under Section 1201 of (reference(e)). 6.5.4.4.4 Reserve officers and enlisted members who have retired after completion of 20, or more, years of active Military Service. This does not include Regular enlisted members of the Navy or the Marine Corps, with 20 to 30 years of active Military Service, who are transferred to the Fleet Reserve (Navy) or the Fleet Marine Corps Reserve. 6.5.4.4.5 Reserve personnel drawing retired pay based on retirement for reasons other than age, service requirements, or physical
5 DODI 1200.15, ¶ 5.3.1 dated 9/18/1997 (DX L at 5), directed the Secretary to transfer to the Retired Reserve, in addition to those who qualified for retirement pay under Title 10, those found physically disqualified for active duty ... if more than 30% disabled, and “on application ... all personnel who belong in the categories listed in subsection F.4 of DOD Instruction 1215.19.”
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disability. This category is restricted to those who are retired under special conditions, as authorized by the Assistant Secretary of Defense for Reserve Affairs under legislation.6 DODI 1215.19, ¶ 6.5.4.4 (Def.RR Exhibit A, pg. 17-18). DODI 1215.19's Enclosure 2 ¶ E2.2.1.4 (DX A. at 30) again defines “Retired Reserve Categories” using the five categories and qualifications defined in ¶ 6.5.4.4 above, e.g., those Reserve Members: “who have completed the requisite qualifying years creditable for non-regular retired pay and are receiving retired pay under 10 U.S.C. Chapter 1223." Enclosure 4, Table 1 (Def.RR Exhibit A at 39) illustrates and defines the five categories. The entitlement to retired pay is the common feature of all five Retired Reserve categories. DODI 1215.19, ¶ 6.6.4.4, “Retired Reserve” (Exhibit 12) and ¶ E5.1.3 (“Retired Reserve Categories”) of enclosure 5 (id. at 32) define five Retired Reserve categories which duplicate DODI 1215.19's categories. DODD 1402.1 (Exhibit 14) specifically defines the term “Retired Member of the Armed Forces” as “a member or former member of the Armed Forces who is entitled to retired, retirement, or retainer pay.” ¶ 3.1. The use of the term “entitled” means that the person has met the statutory requirements to receive a benefit, creating a right to receive the benefit, i.e., To qualify for; to furnish with proper grounds for seeking or claiming.” Black’s Law Dictionary 277 (Abridged 5th Ed. 1983). “Entitlement” means “Right to benefits, income or property which may not be abridged without due process.” Id. DODD 1352.1, (Exhibit 13) ¶ E.1.1.4, defines “Military Retirees or Retired military Members” as those who retire or are eligible for retirement under Title 10's definitions after reaching the appropriate TIS.
6 These “special conditions” exclude 4109s because this category is limited to those “Reserve Personnel drawing retired pay” for which the 4109s are ineligible. See DODI 1215.19 ¶ 6.5.4.4.
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DOD’s definition of the Retired Reserve limits it to those Reservists entitled to retired, retainer or disability pay. No DOD Retired Reserve Category includes personnel who are not entitled to receive pay as a result of active duty service. DOD’s regulations show it has defined § 10154's phrase “otherwise qualified” by defining what constitutes the RRC, limiting it to statutory categories consistent with the law and Congressional intent. In doing so, the Secretary of Defense has excluded from the Retired Reserve the 4109s because they are not entitled to retired pay.
C. Defendants Must Comply With DOD’s Instructions The law is clear, once the Secretary of Defense has established a policy or regulation, the Armed Services must obey it completely. Regulations promulgated by the Secretary “canalize the discretion of its subordinate officials” and restrict the discretion of subordinate Armed Services that statutes may otherwise provide. See Miami Nation of Indians of Indiana, Inc. v. U.S. Dept. of the Interior, 255 F.3d 342, 348 (7th cir 2001), cert denied, 534 U.S. 1129 (2002); Center for Auto Safety v. Dole, 846 F.2d 1532, (D.C. Cir 1988); (agencies are bound by issued regulations). The facts and competing legal theories here are similar to Bond v. United States, 47 Fed. Cl. 641 (2000). Lieutenant Col. (LTC) Bond challenged a commander’s classification of his duty on a two-day operational alert as active duty for training (“ADT”) rather than active duty support (“ADS”) which entitled him to active duty status and immediate retirement benefits. “The case before this court involves the application of a regulation-driven classification scheme governing reserve military duty assignments”, id. at 650, similar to this case. The Air Force said its regulation allowed the commander complete discretion to classify LTC Bond’s tour of duty any way he wanted. Id. at 648-49, 659 (citing Air Force Regulation (AFR) 35-41). The court disagreed. The court held “the Air Force must comply with governing regulatory definitions in
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assigning TCCs [Training Category Codes]. The TCC is not to be assigned at the convenience of the commander.” Id. at 659. The court found DOD and Air Force regulations defined the TCCs and AFR 35-41 “does not give the commander the discretion to assign duties to either TCC at will. To allow otherwise would allow commanders to undermine the intent of the classification scheme.” Id. That is exactly the case here as shown below. Service practices that conflict with DOD’s regulations “must give way.” Id. at 622 (quoting Casey v. United States, 8 Cl. Ct. 234, 239 (1985)); Poole v. Rourke, 779 F.Supp. 1546, 1565-66 (E.D.Cal.1991). Unfortunately, defendants have not followed either the law or the DOD regulations. They have illegally classified the 4109s as retired reserve and allowed them to remain on active duty illegally.
D. The 4109s Have Been Illegally Classified and Illegally Continued on Active Duty
DOD requires defendants to legally categorize all Reservist into a RCC. DODI 1215.19, ¶ 5.2.8 (“The Secretaries of the Military Departments ... shall: Designate all RC members in a RCC and TRC according to the criteria established in Enclosures 5 and 6.”). Prior to reaching their statutory separation age, the 4109s were Reservists on active duty. When they reached § 14509's former statutory separation age of 60, these 4109s were illegally continued until they reached age 67 because § 14703 is limited to extending Reserve chaplains on the RASL to age 67, and these chaplains were on active duty. When they reached age 67, the 4109s were transferred into the Retired Reserve illegally because they were not entitled to receive retired pay and therefore ineligible for transfer to the Retired Reserve as defined by DOD. Defendants are not free to create new Retired Reserve Categories or disobey DOD’s orders to “[d]esignate all RC members in a RCC and TRC according to the criteria established in Enclosures 5 and 6.” Both the transfer to
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and recall from the Retired Reserve was illegal because the 4109s did not meet the criteria for transfer to the Retired Reserve.
E. Title 10 Provides Limited Authority to Extend Regular Chaplains Eligible for Retirement Beyond Age 62
10 U.S.C. § 1251(a) establishes age 62 as the normal separation age for each Regular officer. “Unless retired or separated earlier, each regular commissioned officer ... [below the grade of RADM] shall be retired on the first day of the month following the month in which the officer becomes 62 years of age.” The word “retired” has a specific legal meaning and is defined by statute and DOD Directives, as shown in A and B above. It means a person has accumulated at least 20 years active TIS which entitles him to a pension, the amount of which is determined by his total length of service, his time in grade, and his grade upon the date of his retirement. These factors are all established by statute. See, e.g., 10 U.S.C. §§ 6321-36.
Section 1251(c) allows the Secretary to “defer the retirement under subsection (a) of an officer who is appointed or designated as a chaplain if the Secretary determines that such deferral is in the best interests of the military department concerned.” (Emphasis added). Subsection (d), “Limitation on deferment of retirements,” limits such deferments until “the first day of the month following the month in which the officer becomes 68 years of age.” § 1251(d)(1). A recent change to this provision of § 1251, effective October 10, 2006, allows the Secretary to “extend the deferment under subsection ... (c) beyond the day referred to in paragraph (1) [age 68] if the Secretary determines that extension of the deferment is necessary for the needs of the military department concerned.”
A plain reading of the statute and the common understanding of the terms “defer” and the
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DOD’s use of the terms “retired” and “retirement” shows this subsection provides no authority to extend chaplains who have not attained the necessary time in service for retirement until they reach 20 years service. “Defer” means “to put off to a future time; postpone, delay.” Webster’s New World Dictionary 384 (1960); see also Black’s Law Dictionary 219 Abridged 5th Ed. 1983 (“Deferral. Act of delaying, postponing or putting off.”). “A fundamental canon of statutory construction is that unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979). Retirement is the specific point in time when a military person becomes “retired” as defined by DODD 1402.1. To “defer the retirement” of a chaplain under § 1251 is to postpone or delay the actual day when the chaplain who is eligible for retirement, i.e., has met Title 10's requirements, actually changes his or her status from active to retired. The Secretary cannot defer “retirement” of a chaplain who does not qualify for retirement.
F. Title 10 Provides No Authority to Extend Reserve Chaplains on Active Duty Beyond Age 67
When plaintiffs filed this motion in 2003, 10 U.S.C. § 14509 required the separation of Reserve chaplains when they reached age 60. Changes to Title 10 in 2006 changed the separation age of Reserve chaplains to age 62, making it the same age as Regulars. Section 14703(a)(2) authorizes the Secretary to “retain in active status any Reserve officer appointed ... in the Chaplain Corps” beyond age 62. However, this authority is specifically limited by two aspects. First, it excepts “officers referred to in Sections 14503, 14504, 14505 and 14506,” which address Reserve officers who have not been promoted to the grade of Commander. That excludes the 4109 chaplains at issue here who are FOS LTs and LCDRs.
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The second limitation is subsection (b) “Separation at Specified Age.” “An officer may not be retained on active status under this section later than the date on which the officer becomes 67 years of age.” (emphasis added). There is no exception similar to 10 U.S.C. § 1251(d)(2) which allows the Secretary to defer Regular chaplain retirements past age 68 for a specific need of the service. The use of the term “may not” eliminates the permissive sense normally associated with the term “may.” Had Congress wished to allow the Secretary the same latitude it provided in § 1251, it knew how to do so. The fact it did grant the Secretary authority to exceed the age 68 limit for Regulars but specifically denied it for Reservists shows that is what Congress intended, a result consistent with Congress’s differing treatment of Regulars and Reserves. “When Congress ‘includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the separate inclusion or exclusion.’” American Chemical Council v. Johnson, 406 F.3d 738, 741 (D.C. Cir. 2005) (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002)).
Title 10's structure and placement of § 14703's retention authority creates additional problems for defendants’ attempt to justify their illegal retention of these FOS Catholic chaplains. Congress has provided no authority within the structure of Subtitle E to allow Reserve officers to continue on active duty past the mandatory separation age. Congress placed § 14703 in Chapter 1409, Part III, Subtitle E which specifically addresses the Reserve components. Part III addresses “Promotion and Retention of Officers on the Reserve Active-Status List” and Chapter 1409 addresses “Continuation of Officers on the Reserve Active-Status List and Selective Early Removal.” The clear implication is that § 14703, by its placement in Chapter 1409 and Part III, addresses only officers on the RASL. These 4109 chaplains are not on the RASL. They must be
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carried on the ADL because they are on active duty. 10 U.S.C. § 101(c)(7) defines the RASL and excludes anyone on the ADL. As noted above, the lists are mutually exclusive. The fact these chaplains cannot be covered under § 14703 is consistent with and follows from DOPMA’s structure and focus on producing an all Regular Active Duty force. The recent changes to Title 10 making all entry level officers Regular officers is a further demonstration of Congress’s intent that the active duty force should be regular.
There is no authority to extend these 4109 Reserve Catholic chaplains under § 14703. Congress specifically excluded those who have FOS to Commander, which addresses this group of 4109s and perhaps others, and § 14703(a), and § 14703(b) limit any such extension to the day the chaplain who is at least a Commander becomes “67 years of age.” V. PLAINTIFFS MEET THE OTHER INJUNCTION CRITERIA
A. Defendants’ Establishment Clause Violation Produces Irreparable Harm The unconstitutional 4109 Program produce irreparable harm. CFGC, 454 F.3d at 303. B. Terminating Defendants’ Unconstitutional Practice Poses No Burden or Injury
on Defendants The Navy will suffer no harm whatsoever if the Court orders it to comply with the statutory limits on active duty chaplains. The Navy can suffer no prejudice by ending its practice of preference for over-age Catholics. Navy officials are charged with following the law as well as their own regulations and cannot claim prejudice if forced to do so by the Court. OPNAVINST 1730.1D allows defendants to hire the 4109s as contract clergy if they are needed. C. Terminating Defendants’ Unconstitutional Practice Is in the Public Interest A consistent Supreme Court theme in many of the cases addressing Establishment Clause
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challenges is that Clause’s purpose was to avoid divisiveness, division, hostility and friction resulting from the government’s union and cooperation with religion. “The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy.” Everson v. Board of Ed., 330 U.S. 1, 8-9 (1947). “At the time of the Revolution, Americans feared not only a denial of religious freedom, but also the danger of political oppression through a union of civil and ecclesiastical control.” Larkin, 459 U.S. 126 n. 10 (citing B. Bailyn, Ideological Origins of the American Revolution 98 – 99, n. 3 (1987)).
By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval from each King, Queen, or Protector that came to temporary power. Engel v. Vitale, 370 U.S. 421, 429 (1962); accord Everson, 330 U.S. at 8-11. This case illustrates the very evil the Establishment Clause was designed to prevent. A group of chaplains from various Non-liturgical faith groups is before this Court to redress the government’s alliance with and favoritism to another religious group, the Catholic Church. Benefits are given and denied based on religious affiliation. Confronting and forbidding the very government actions that produce “the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval” serves the public interest. Courts have held it is in the public interest to vindicate First Amendment rights. Rigdon v. Perry, 962 F.Supp 150, 165
42

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(D.D.C. 1977); see also, e.g., Utah Licenced Bev. Ass’n v. Leavitt, 256 F.3d 1061, 1076 (10th Cir. 2001). It is in the highest public interest to make sure our military remains neutral in matters of religion. The public has a strong interest in having a military that conducts itself fairly and according to the law. Cooney v. Dalton, 877 F. Supp. 508, 515 (D.Hawai’i 1995) (enjoining the discharge of a sailor). That interest is particularly evident in this case. “We ... hold that a party alleging a violation of the Establishment Clause per se satisfies the irreparable injury requirement of the preliminary injunction calculus.” CFGC, 454 F.3d at 304. The very purpose of an injunction is to stop irreparable harm. The Navy has clearly violated Title 10, the Secretary’s own instructions and the Establishment Clause. When agencies stray beyond the limits set for them by Congress, courts have a duty to require that they comply with the law. See Dilley, 603 F.2d at 914.
“The federal Constitution embraces and embodies the cardinal principle that this is a nation subject to the rule of law, and as such, agents of the government are bound to follow the law.”7 Wilkinson v. Legal Services Corp., 27 F. Supp. 2d 32, 57 (D.D.C. 1998) (citing United States v. Lee, 106 U.S. 196, 220-21 (1892) and other cases). See also Dilly v. Alexander, 603 F.2d 919, 920 (D.C. Cir 1979) (“It is a basic tenet of our legal system that a government agency is not at liberty to ignore its own laws and that agency action in contravention of applicable statutes and regulations is unlawful”) and 921 (“courts have shown no hesitation to review cases in which a violation of the Constitution ... is alleged.”).
It is both absurd and seditious to argue that allowing the government to operate outside of the Constitution is in the public interest. Defendants can show no burden if they must operate their
7 Wilkinson, 27 F. Supp. 2d at 57-64 provides an extensive discussion of the Accardi Doctrine, the rule government must obey the law, referring to Accardi v. Shaughnessy, 347 U.S. 260 (1954).
43

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chaplain management and retention programs in accord with the Constitution. Plaintiffs have met all the criteria for an injunction.
D. There Are No Third Party Rights That must Be Addressed Defendants have previously improperly argued “[a]llowing plaintiffs to go forward with a motion that requires affirmative action affecting the rights of non-party naval officers, whose own rights must be considered and respected, prior to a final judgment that plaintiffs are entitled to any relief is not justified.” Opp to Motion to Lift Stay at 9. As shown in the Background above and here, the Catholic 4109 chaplains in question were commissioned with age waivers under SECNAVINST 1120.4A which specifically requires the applicant’s written acknowledgment he will be unable to reach 20 years of service necessary for a pension and retirement under Title 10. Their situation is addressed at the very end of ¶ 6.b. “Before appointment, applicants who will be unable to complete 20 years of creditable service for retirement [before reaching age 62] shall acknowledge the same in writing.” See Inj. Mot. at 7 and 10, No. 14 (quoting 1120.4A, ¶ 6.b ). Consequently, these chaplains have no rights that must be protected should the Court order an injunction because their waivers show they had no legitimate expectation of being allowed to stay past their statutory separation age. The SECNAVINST makes it clear they should expect to be separated at the statutory separation age. Assuming arguendo they had such a claim due to defendants’ actions, any abridgment of the challenged chaplains’ expectations arising from a forbidden and illegal transaction and status that no Navy official was authorized to provide would have to be raised by them personally. The validity of any theory under which such claims could arise is not an issue in this motion. The injunction operates against the Navy, not these chaplains. VI. PLAINTIFFS HAVE MET THE CRITERIA FOR AN INJUNCTION
44

Case 1:07-mc-00269-GK Document 3 Filed 07/10/07 Page 53 of 55

Plaintiffs’ evidence shows the 4109 Program is a denominational preference. The

appropriate precedent for addressing such claims shows the 4109 Program is an unconstitutional

denominational preference as shown in II-IV plaintiffs in violation of the Establishment Clause

producing irreparable harm. An injunction will not harm defendants and is in the public interest.

No valid third party rights are involved.

CONCLUSION

Defendants have failed to show any compelling purpose for their challenged practice.

There are no competing interests that outweigh the need to terminate the irreparable harm from

defendants’ violation of the Establishment Clause. Defendants can show no prejudice, whereas

allowing their continued violation of the Constitution would be unprecedented.

Plaintiffs ask the Court (1) to immediately enjoin defendants from continuing only

Catholics past the statutory separation age of 62; (2) to order defendants to immediately end their

4109 Program and the retention of other Catholics over the age of 62; and (3) order defendants to

establish objective criteria for extending chaplains past age 62, including identifying specific

religious needs and other neutral, secular and non-ideological criteria.

Respectfully submitted,

Dated: July 9, 2007

/S/ Arthur A. Schulcz, Sr. ARTHUR A. SCHULCZ, Sr. D.C. Bar No. 453402 Counsel for CFGC and the Adair Plaintiffs 2521 Drexel Street Vienna, VA 22180 703-645-4010

45

Case 1:07-mc-00269-GK Document 3 Filed 07/10/07 Page 54 of 55 Of Counsel: Douglas McKusick, Esq. THE RUTHERFORD INSTITUTE P.O. Box 7482 Charlottesville, VA 22906-7482
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Case 1:07-mc-00269-GK Document 3 Filed 07/10/07 Page 55 of 55

EXHIBIT LIST

Exhibit No. Description

1.

10 U.S.C. § 14509.

2.

SECNAVINST 1120.4A.

3.

“Does the Data Establish that the U.S. Navy favors Roman Catholics”, 7/7/07

Expert Opinion by Harald R. Leuba, PhD.

4.

OPNAVINST 1730.1D.

5.

October 1999 Navy Chaplain Corps “Study on Religious Affiliation in the

Department of Navy”

6.

Declaration of CAPT James Poe, CHC, USN (Ret).

7.

Extract of Deposition of CAPT Thomas Carter, CHC, USN (Ret)

8.

List of Chaplains accessed or brought to active duty at age 42.

9.

Total number and percentage of chaplain age waivers for applicants 42 and above.

10.

“Too Many Catholic Priests?” Expert Opinion by Harald R. Leuba, PhD

11.

Department of Defense Instruction 1200.15

12.

Department of Defense Instruction 1215.06

13

Department of Defense Directive 1352.1

14

Department of Defense Directive 1402.1

15

Extract of Deposition of Mr. Thomas Bush

16

Declaration of Arthur A. Schulcz, Sr.

47

 
 Case 1:07-mc-00269-GK Document 15 Filed 10/15/07 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: NAVY CHAPLAINCY

:

:

____________________________________:

Misc. Action No.: 07-0269 (RMU) Document No.: 3

ORDER DENYING THE PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION For the reasons stated in this court’s Memorandum Opinion separately and contemporaneously issued this 15th day of October, 2007, it is hereby ORDERED that the plaintiffs’ motion for a preliminary injunction is DENIED; it is SO ORDERED.

RICARDO M. URBINA United States District Judge

Case 1:07-mc-00269-GK Document 16 Filed 10/15/07 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: NAVY CHAPLAINCY

:

:

____________________________________:

Misc. Action No.: 07-0269 (RMU) Document No.: 3

MEMORANDUM OPINION DENYING THE PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
I. INTRODUCTION In the latest phase of this continuing dispute between the plaintiffs (non-liturgical naval chaplains and their endorsing agencies) and the defendants (the United States Navy and various naval officers) (“the Navy”), the plaintiffs move for a preliminary injunction to prevent the Navy from affording preferential treatment to Catholic chaplains by allowing them to remain on active duty past the statutory separation age in order to qualify for retirement pay. The plaintiffs claim that this alleged policy constitutes a denominational preference in violation of the Navy’s own regulations as well as the Establishment Clause of the First Amendment and the Due Process Clause of the Fifth Amendment. The Navy demurs, maintaining that its regulations authorize the contested policy, that the policy is a permissible accommodation of religion under the Free Exercise Clause of the First Amendment and that the plaintiffs lack standing to challenge the policy in the first instance. Because the court concludes that the plaintiffs do not demonstrate standing to bring this claim, it denies their motion.

Case 1:07-mc-00269-GK Document 16 Filed 10/15/07 Page 2 of 14
II. BACKGROUND A. Factual History Because the court has published over a dozen opinions in this case, it will dispense with a full recitation of its lengthy and convoluted factual and procedural background.1 Pertinent to the instant motion, the plaintiffs identify 23 reserve Catholic chaplains retained on active duty past age 60 for the purpose of enabling their pensions to vest by achieving 20 years of service. Pls.’ Mot. for a Prelim. Inj. at 1-2. Seven chaplains over the age of 67 were designated as “Retired Reservists Recalled to Active Duty” even though, the plaintiffs argue, they have not met the criteria for that designation. Id. at 2. The plaintiffs’ motion requests a preliminary injunction to (1) stop the denominational preference policy; (2) enjoin future violations; and (3) require the defendants to comply with the discharge statutes. Id. B. Procedural History This motion returns to the court via a reversal from the D.C. Circuit holding that an allegation of a violation of the Establishment Clause per se satisfies the irreparable injury element for an injunction. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 304 (D.C. Cir. 2006). The Circuit remanded for consideration of whether the plaintiffs can meet the remaining elements necessary for obtaining an injunction, namely, a likelihood of success on the merits, a lack of substantial injury to other parties and the promotion of the public interest. Chaplaincy, 454 F.3d at 305.

1

For a detailed account of the factual allegations, see Adair v. England, 183 F. Supp. 2d 31, 34-38,

40-45 (D.D.C. 2002).

2

Case 1:07-mc-00269-GK Document 16 Filed 10/15/07 Page 3 of 14
III. ANALYSIS A. Legal Standard for a Preliminary Injunction This court may issue interim injunctive relief only when the movant demonstrates: (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction is not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction. Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)); see also World Duty Free Americas, Inc. v. Summers, 94 F. Supp. 2d 61, 64 (D.D.C. 2000). It is particularly important for the movant to demonstrate a substantial likelihood of success on the merits. Cf. Benten v. Kessler, 505 U.S. 1084, 1085 (1992) (per curiam). Indeed, absent a “substantial indication” of likely success on the merits, “there would be no justification for the court’s intrusion into the ordinary processes of administration and judicial review.” Am. Bankers Ass’n v. Nat’l Credit Union Admin., 38 F. Supp. 2d 114, 140 (D.D.C. 1999) (internal quotation omitted). The four factors should be balanced on a sliding scale, and a party can compensate for a lesser showing on one factor by making a very strong showing on another factor. CSX Transp., Inc. v. Williams, 406 F.3d 667 (D.C. Cir. 2005) (citing CityFed Fin. Corp., 58 F.3d at 747). “An injunction may be justified, for example, where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury.” CityFed Fin. Corp., 58 F.3d at 747.
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Moreover, the other salient factor in the injunctive relief analysis is irreparable injury. A movant must “demonstrate at least ‘some injury’” to warrant the granting of an injunction. Id. at 747 (quoting Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986)). Indeed, if a party makes no showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors. Id.
Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). As the Supreme Court has said, “[i]t frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Id. Therefore, although the trial court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted lightly. In addition, any injunction that the court issues must be carefully circumscribed and “tailored to remedy the harm shown.” Nat’l Treasury Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C. Cir. 1990).
When a party seeks a mandatory injunction – to change the status quo through action rather than merely to preserve the status quo – typically the moving party must meet a higher standard than in the ordinary case: the movant must show “clearly” that she is entitled to relief or that extreme or very serious damage will result. Adair v. England, 217 F. Supp. 2d 1, 3 n.6 (D.D.C. 2002); Veitch v. Danzig, 135 F. Supp. 2d 32, 35 (D.D.C. 2001); see also Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319 (9th Cir. 1994) (noting that “[i]n cases such as the one before us in which a party seeks mandatory preliminary relief that goes well beyond maintaining the status quo pendente lite, courts should be extremely cautious about issuing a preliminary injunction”); Abdul Wali v. Coughlin, 754 F.2d 1015, 1025-26 (2d Cir. 1985) (same); Martinez v. Mathews,
4

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544 F.2d 1233, 1243 (5th Cir. 1976) (same). The D.C. Circuit, however, has not yet adopted or, for that matter, rejected this rule. Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 834 n. 31 (D.C. Cir. 1984) (stating that “[i]n this circuit, however, no case seems to squarely require a heightened showing, and we express no view as to whether a heightened showing should in fact be required”); see also Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo-Mitsubishi, Ltd., 159 F.3d 636, at *1 (D.C. Cir. 1998) (unpublished table decision) (declining to “reach the question whether the district court erred in holding that the standard applicable to a mandatory preliminary injunction is higher than that applicable to a prohibitory preliminary injunction”).
B. Likelihood of Success on the Merits The plaintiffs argue that they are likely to succeed on their claim because they possess the standing necessary to challenge the Navy’s policy and because the Navy’s policy violates Navy Regulations and the First and Fifth Amendments. Because the court concludes that the plaintiffs fail to demonstrate standing, the court foregoes further analysis of the merits.
1. Standing a. Legal Standard for Standing Article III of the Constitution limits the jurisdiction of federal courts to cases or controversies. U.S. CONST. ART. III, § 2, cl. 1. These prerequisites reflect the “common understanding of what it takes to make a justiciable case.” Steel Co. v. Citizens for a Better Env., 523 U.S. 83, 102 (1998). Consequently, “a showing of standing is an essential and unchanging predicate to any exercise of a court’s jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
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As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing standing. Defenders of Wildlife, 504 U.S. at 561; Steel Co., 523 U.S. at 104; City of Waukesha v. Envtl. Prot. Agency, 320 F.3d 228, 233 (D.C. Cir. 2003) (per curiam). The extent of the plaintiff’s burden varies according to the procedural posture of the case. Sierra Club v. Envtl. Prot. Agency, 292 F.3d 895, 898-99 (D.C. Cir. 2002). At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct will suffice. Id. On a motion for summary judgment, however, the “plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts which for purposes of the summary judgment motion will be taken to be true.” Id. at 899 (citing Federal Rule of Civil Procedure 56); accord Fla. Audubon, 94 F.3d at 666.
To demonstrate standing, a plaintiff must satisfy a three-pronged test. Sierra Club, 292 F.3d at 898 (citing Defenders of Wildlife, 504 U.S. at 560). First, the plaintiff must have suffered an injury-in-fact, defined as a harm that is concrete and actual or imminent, not conjectural or hypothetical. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 243 (D.C. Cir. 1999) (citing Steel Co., 523 U.S. at 103). Second, the injury must be fairly traceable to the governmental conduct alleged. Id. Finally, it must be likely that the requested relief will redress the alleged injury. Id. Our court of appeals has made clear that no standing exists if the plaintiff’s allegations are “purely speculative[, which is] the ultimate label for injuries too implausible to support standing.” Tozzi v. Dep’t of Health & Human Servs., 271 F.3d 301, 307 (D.C. Cir. 2001). Nor is there standing where the court “would have to accept a number of very speculative inferences and assumptions in any endeavor to connect the alleged injury with [the challenged conduct].” Winpisinger v. Watson, 628 F.2d 133, 139 (D.C. Cir. 1980).
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If the plaintiff is an association, it may demonstrate standing as long as “its members would have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires members’ participation in the lawsuit.” Consumer Fed’n of Am. v. Fed. Commc’ns Comm’n, 348 F.3d 1009, 1011 (D.C. Cir. 2003) (quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)).
b. The Plaintiffs’ Pleadings Do Not Demonstrate Standing The Navy disputes the plaintiffs’ standing to bring suit on the grounds that they fail to demonstrate a personal, particularized injury. The Navy notes that “[m]any of the individual plaintiffs are no longer on active duty, Defs.’ Opp’n to Pls.’ Mot. for a Prelim. Inj. (“Defs.’ Opp’n”) at 11, arguing therefrom that any injury the plaintiffs may have suffered is now beyond prospective relief, id. at 9-10. As for those plaintiffs remaining on active duty, the Navy contends that they have not “demonstrated that they are eligible for and were denied retention over age 62.” Id. The plaintiffs counter that “those chaplains who were illegally retained are still on active duty,” a state of affairs that allegedly violates the Establishment Clause because it communicates a message of sectarian preference. Pls.’ Reply to Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. (“Pls.’ Reply”) at 12. The plaintiffs clarify that they “do not assume that nonliturgicals sought and were denied the opportunity for extensions past the statutory cutoff or placement into the Retired Reserve prior to being entitled to retired pay.” Pls.’ Reply at 11. Rather, they argue that the Navy has instituted an unconstitutional preference system that, by violating the Establishment Clause, “communicates” a “message of preference,” which constitutes a per se injury. Id. at 12-13.
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I. The Plaintiffs Have not Demonstrated a Particularized Injury-In-Fact A superficial reading of the D.C. Circuit’s ruling remanding this matter might support the plaintiffs’ position that standing exists. There, the Circuit held that a violation of the Establishment Clause constitutes a per se irreparable injury for the purposes of requesting a preliminary injunction. Chaplaincy, 454 F.3d at 305. In the bulk of cases, a finding of an irreparable injury a fortiori signals the existence of an injury-in-fact sufficient to confer standing. Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1508 (D.C. Cir. 1995) (conceding that while “inquiry [regarding irreparable injury] overlaps with the standing issue somewhat” grounds supporting a motion for a preliminary injunction “must show more” than mere standing). But, among the justiciability doctrines feeding into the Supreme Court’s pool of jurisprudence, the Establishment Clause is, it must be admitted, a queer duck. See Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 294 n.31 (5th Cir. 2001) (recognizing that “the concept of injury for standing purposes is particularly elusive in Establishment Clause cases”). As a general rule, a federal taxpayer’s interest in ensuring that Treasury funds are not spent in violation of the Constitution is too nebulous to establish the redressable “personal injury” required for Article III standing. See, e.g., Massachusetts v. Mellon, 262 U.S. 447, 485-486 (1923). The Supreme Court has carved a narrow exception, however, declaring that federal taxpayer standing does exist for Establishment Clause challenges to the constitutionality of exercises of congressional power under the taxing and spending clause of Art. I, § 8. Flast v. Cohen, 392 U.S. 83 (1968); Hein v. Freedom From Religion Found., Inc., 127 S.Ct. 2553 (2007); but see Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494, 500 (5th Cir. 2007) (DeMoss concurring) (accusing the Supreme Court of “speak[ing] out of both sides of its mouth” by
8

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creating a “double standard” in which “it implicitly assumes standing in [Establishment Clause] cases where the alleged injury, in a non-Establishment Clause case, would not get the plaintiff into the courthouse”).
Presumably, it is this exception that the D.C. Circuit had in mind in its recent ruling. The appeals court concluded that a violation of the Establishment Clause constitutes an irreparable injury for the purposes of a preliminary injunction. The court explicitly noted that its conclusion “presupposes, of course, that the party has standing to allege such a violation.” Chaplaincy, 454 F.3d at 304 n.8; see Gettman v. Drug Enforcement Admin., 290 F.3d 430, 436 (D.C. Cir. 2002) (affirming that an appellate court may assume standing exists without also deciding so). And when outlining a hypothetical case of a state legislature erecting an enormous Christian cross in front of the statehouse, the court observed that, in such a situation, “an offended resident would have taxpayer standing to seek removal of the cross.” Id. at 304 (citing Flast, 392 U.S. at 83 ).
The plaintiffs, however, urge the court to conclude that the Circuit found standing for the plaintiffs in their own right because a violation of the Establishment Clause communicates a “message” of sectarian preference. Pls.’ Reply at 12-13. Specifically, the plaintiffs argue that allowing the Catholic chaplains who were allegedly illegally retained to remain on active duty “is a continuing violation of the Establishment Clause because it clearly communicates a message of preference.” Id. at 12. The plaintiffs concede that none of them has suffered the particular and concrete injury of having “sought and [been] denied the opportunity for extensions past the statutory cutoff or placement into the Retired Reserve prior to being entitled to retired pay.” Id. at 11. Nor have the plaintiffs, among whom are four active Navy service-members, shown that any of them are destined to encounter discrimination. See generally Pls.’ Compls. Even were
9

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they to allege that they might encounter such discrimination in the future, a case that rests on “ifs” stands not on solid ground but on stilts of conjecture. Cf. O’Shea v. Littleton, 414 U.S. 488, 497 (1974) (refusing to recognize injury based on the hypothetical that if the plaintiffs violated the law in the future and if they were prosecuted they would be subjected to unconstitutional criminal procedure practices in the courts). Because the plaintiffs have not showed that any of them will be subjected to the Navy’s allegedly discriminatory policy, Saunders v. Caldera, 193 F. Supp. 2d 1, 5 (2001), the court cannot embrace the notion that they have demonstrated a “threatened injury [that] is certainly impending.” Friends of the Earth, 528 U.S. at 190.
In fact, the plaintiffs point to no factor distinguishing their alleged injury from that of any other Navy service-member or even (from a wider perspective) that of a general federal taxpayer. The plaintiffs may find the alleged message of preference invidious, but “such [a stigmatizing] injury accords a basis for standing only to ‘those persons who are personally denied equal treatment by the challenged discriminatory conduct . . . .’” Allen v. Wright, 468 U.S. 737, 755 (1984) (quoting Heckler v. Mathews, 465 U.S. 728, 739-740 (1984)). The plaintiffs seek to invoke the abstract principle underlying the Establishment Clause to evoke their personal standing. But because such an injury is derived from general principles rather than particular, concrete facts, it amounts to only an “abstract injury in nonobservance of the Constitution,” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. at 223 n.13, applicable to all and particular to none, which “is not enough” to establish standing, Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).
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ii. The Plaintiffs Have not Demonstrated Injury Based on Federal Taxpayer Status Thus, if the plaintiffs are to successfully establish their standing in this matter, they must
do so under the narrow Establishment Cause exception to taxpayer standing. Yet here, too, the plaintiffs’ case buckles for lack of solid footing. Under limited circumstances, a plaintiff’s status as a taxpayer will “supply the personal stake essential to standing.” Schlesinger, 418 U.S. at 227. The plaintiff must show “a logical nexus between the (taxpayer) status asserted and the claim sought to be adjudicated.” Flast, 392 U.S. at 102. Thus, the spending challenged must be specifically appropriated for the challenged activity. Hein, 127 S.Ct. at 2567 (characterizing as an inadequate basis of standing a challenge to “unspecified, lump-sum ‘Congressional budget appropriations’ for the general use of the Executive Branch”) (quotations omitted). And, second, “the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power.” Id.
The plaintiffs here cannot make such a showing, as they do not challenge a congressional enactment under Art. I, § 8, but rather the action of the Executive Branch in extending the tenures of Navy service-members. The plaintiffs argue, referencing the case of Katcoff v. Marsh, that if law school students have taxpayer standing to challenge the constitutionality of the Army’s chaplaincy program, then former and current naval service-members should have standing to challenge the Navy’s chaplaincy program. Pls.’ Reply at 13-14 (citing Katcoff v. Marsh, 755 F.2d 223, 224 (2d Cir. 1985)). But Katcoff is distinguishable. The plaintiffs in Katcoff specifically challenged the decision of Congress to finance the Army’s chaplaincy program in the first instance, not any particular decision by the Executive branch in running the chaplaincy. Katcoff, 755 F.2d at 229 (addressing the plaintiffs’ argument that government funding of a
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chaplaincy program is unnecessary). Here, on the other hand, the plaintiffs challenge the Executive branch’s management of a chaplaincy program. They do not – and they cannot – identify any congressional statute authorizing the Navy to discriminate through religious preferences in extending service-members’ tenures. Compare Flast, 392 U.S. at 90 (framing the alleged violation as an express congressional authorization of expenditures to private schools both secular and religious) with 10 U.S.C. § 5142(a) (authorizing simply the organization of a Chaplain Corps “in accordance with regulations prescribed by the Secretary of the Navy”). Put simply, the injury that they allege does not flow from any particular spending decision by Congress. That being so, they cannot rely on taxpayer standing.
iii. The Plaintiff-Associations Do Not Have Standing in their own Right or on Behalf of their Plaintiff-Members
The Navy argues that the plaintiff-associations, Chaplaincy of Full Gospel Churches (“CFGC”) and Associated Gospel Churches (“AGC”), do not have standing to bring this claim, either. The Navy reasons that, although the court did previously find that CFGC possessed associational standing, “it did not rule that CFGC had standing to challenge the specific practice at issue here,” and the court “tied [CFGC’s] standing to the standing that each individual CFGCendorsed chaplain would have to challenge the alleged conduct.” Defs.’ Opp’n at 13. The plaintiffs do not respond, other than to state: “The law of this case remains that CFGC, and by implication AGC, have standing to seek prospective relief on behalf of their members.” Pls.’ Reply at 13 (citing Mem. Op. (Aug. 17, 2000)).2

2

The plaintiffs do not argue that Chaplaincy of Full Gospel Churches or Associated Gospel

Churches has standing to sue in its own right – a proposition already denied by the court and not

warranting reexamination. Mem. Op. (Aug. 17, 2000) at 10.

12

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An association has standing to sue on behalf of its membership when: (a) its members have standing to sue in their own right; (b) the organization seeks to vindicate interests close to its own purposes; and © neither the claim nor the relief requires the participation of individual members in the suit. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977); Warth v. Seldin, 422 U.S. 490 (1975). In its August 17, 2000 memorandum opinion, the court concluded that CFGC had standing to survive a motion to dismiss because the individual plaintiffs had standing to pursue their claims at issue then. Mem. Op. (Aug. 17, 2000) at 11 (referencing claims of being denied advancement as well as receiving unequal treatment in assignments, worship services and job evaluations). Today, however, the plaintiffs articulate a different injury – the communication of a message of religious preference by the Navy’s extension of tenures for Catholic Navy service-members. The court has explained above why this allegation cannot establish the plaintiffs’ standing to sue in their own right. The associationplaintiffs cannot rely upon their prior standing to sue affirmed by the court on different injuries. Therefore, they too cannot bring this case.
Because standing is a jurisdictional prerequisite to suit, the court need not examine the plaintiffs’ further arguments in support of their motion for a preliminary injunction. Steel Co., 523 U.S. at 101 n.3 (1998) (affirming that a federal court has leeway to choose among threshold grounds for declining to consider a case on the merits).
13

Case 1:07-mc-00269-GK Document 16 Filed 10/15/07 Page 14 of 14 IV. CONCLUSION
For the foregoing reasons, the court denies the plaintiffs’ motion for a preliminary injunction. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 15th day of October, 2007.
RICARDO M. URBINA United States District Judge
14

 
 Case 1:07-mc-00269-GK Document 31 Filed 12/09/08 Page 1 of 1

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'~nit£n ~tat££i ([ourt of J\pp£als
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 07-5359
IN RE: NAVY CHAPLAINCY,
CHAPLAINCY OF FULL GOSPEL CHURCHES, ET AL., APPELLANTS
v.
UNITED STATES NAVY, ET AL., APPELLEES

September Term, 2007
FILED ON: AUGUST 1, 2008

Appeal from the United States District Court for the District of Columbia (No. 07ms00269)

Before: ROGERS and KAVANAUGH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

JUDGMENT

This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia and was argued by counsel. On consideration thereof, it is

ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby affirmed, in accordance with the opinion of the court filed herein this date.

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Deputy Clerk

Date: August 1, 2008
Opinion for the court filed by Circuit Judge Kavanaugh. Di<ssenting opinion filed by Circuit Judge Rogers.

 
 Case 1:07-mc-00269-GK Document 44 Filed 03/09/09 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: NAVY CHAPLAINCY

)

)

Case No. 1: 07-mc-269 (RMU)

)

)

CHAPLAINCY OF FULL GOSPEL CHURCHES, )

)

v.

)

)

THE HON. DONALD C. WINTER, et al.

)

)

Case No. 1: 99-cv-02945 (RMU)

PLAINTIFF CFGC’S REPLY MEMORANDUM IN SUPPORT OF ITS RULE 54(b) MOTION TO ALTER OR AMEND THE COURT’S AUGUST 2000 INTERLOCUTORY DECISION OR IN THE ALTERNATIVE FOR AN ORDER DIRECTING ENTRY OF A FINAL JUDGMENT

March 9, 2009
Of Counsel: Douglas McKusick, Esq. THE RUTHERFORD INSTITUTE P.O. Box 7482 Charlottesville, VA 22906-7482

ARTHUR A. SCHULCZ, SR. Law Office of Arthur A. Schulcz, Sr., PLLC Attorney for the Plaintiff, CFGC D.C. Bar No. 453402 2521 Drexel Street Vienna, VA 22180 703-645-4010: FAX 703-645-4011

Case 1:07-mc-00269-GK Document 44 Filed 03/09/09 Page 2 of 32
INDEX INDEX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. CFGC’S MOTION IS TIMELY AND ITS EVIDENCE IS NEW AND RELEVANT.. . . 2
A. Defendants Failed to Provide Critical Accessions Information Until July 2006. . . 4 B. CFGC’s New Material is Relevant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C. CFGC’s Motion to Amend and New Material Are Timely. . . . . . . . . . . . . . . . . . . 9 II. CFGC’S PETITION MEETS RULE54(b) REQUIREMENT AND AMENDING IT IS IN THE INTEREST OF JUSTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. The District Court’s Decision Shows it Misunderstood CFGC’s Mission and
Organizational Objectives if it Accepted CFGC’s Allegations as True. . . . . . . . 11 1. Endorsement is the ability to represent a faith group to the military. . . . . 12 2. The Constitution requires the Navy to provide a chaplaincy. . . . . . . . . . . 16 3. The concept that endorsement allows a chaplain to represent his faith
group or religious body is unique to the military but required by the Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 4. CFGC’s allegations, if taken as true, show it has been injured because defendants’ activities are at loggerheads with CFGC’s organizational goals and programmatic concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 B. The New Material Shows Defendants’ Actions are at Loggerheads with CFGC’s Concerns and Core Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 C. Amending the 2000 Decision Is in the Interests of Justice. . . . . . . . . . . . . . . . . . 22 III. IN THE ALTERNATIVE, A RULE 54 (b) FINAL JUDGMENT IS APPROPRIATE. . 23 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 EXHIBIT LIST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
i

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TABLE OF AUTHORITIES FEDERAL CASES: Adair v. England, 183 F.Supp.2d 31 (D.D.C. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 22 Adair v. England, 217 F.R.D. 7 (D.D.C. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23 Assoc. of Gen Contractors of Cal., Inc. v. Coal for Econ. Equity, 950 F.2d 1401 (9th Cir. 1991),
cert denied, 503 U.S. 385 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Brown Shoe Co. v. United States, 370 U.S. 299 (1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006). . . 1, 3, 9, 21, 24 Cooper v. First Government Mortgage & Investors Corp., 216 F.R.D. 126 (D.D.C. 2002).. . . . 23 Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos,
483 U.S. 327 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Keystone Tobacco, Inc. v. United States Tobacco Co., 217 F.R.D. 235 (D.D.C. 2003). . . . . . . . . 2 Larkin v. Grendel’s Den Inc., 459 U.S. 116 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 Lemon v. Kurtzman, 403 U.S. 602 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Murphy v. Derwinski, 776 F.Supp. 1466 (D.Col. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Rigdon v. Perry, 962 F.Supp. 150 (D.D.C. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 19 Turner v. Parsons, 620 F. Supp. 138 (E.D. Pa. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 Wood v. GCC Bend, LLC, 442 F.3d 873 (9th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
FEDERAL STATUTES 10 U.S.C. § 643. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Federal Rule of Evidence 401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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Case 1:07-mc-00269-GK Document 44 Filed 03/09/09 Page 4 of 32 Federal Rule of Civil Procedure 54(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 5, 6, 11, 25 OTHER AUTHORITIES: DOD Directive 1304.19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 18 DOD Instruction 1304.28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-15 Secretary of Navy Instruction 1730.7B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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INTRODUCTION Plaintiff Chaplaincy of Full Gospel Churches (“CFGC”) has moved under Fed. R. Civ. P. 54(b) (“Rule 54(b)”) to amend the Court’s 2000 decision in CFGC v. Danzig (original defendant) (the “MTA”). The Court’s 2000 Memorandum (the “2000 Mem.”) at 10 held CFGC had no standing “in its own right” because “Defendants’ alleged activity [i.e., its prejudicial practices and policies toward CFGC] ... is not at ‘loggerheads’ with the group’s mission and does not constitute injury in fact.” The MTA cites new Department of Defense (“DOD”) regulations defining more clearly CFGC’s endorser role and organizational interests, and new evidence demonstrating Defendants’ actions, including using denominational favorite hierarchies to award benefits, deny CFGC chaplain applicants chaplain appointments at statistically significantly higher rates than Catholic, Liturgical Protestant, and other Non-liturgical faith group applicants. Defendants apply the same prejudice in accessions to CFGC’s promotion candidates. See Dr. Leuba’s Features Declaration, Tables 2.1, 3, and Figure 5, MTA Exhibit 2. The MTA cited Chaplaincy of Full Gospel Churches v. England (“Chaplaincy”), 454 F.3d 290 (D.C. Cir. 2006) as new precedent because it defined CFGC’s Establishment Clause interest, the harm produced by Defendants’ denominational preferences and found Defendants’ Establishment Clause violations, if true, produced irreparable harm. CFGC’s unrefuted new evidence of Defendants’ preferences for a selected group of favored denominations, the resulting prejudice against CFGC, and Chaplaincy’s holdings applied to the new evidence show Defendants’ actions are at loggerheads with and harm CFGC’s organizational interests, producing injury in fact and standing. The application of controlling organizational standing precedent to the new evidence and circuit law of the case should result in a decision different from the Court’s 2000 decision. In the alternative, CFGC asks for a Rule

Case 1:07-mc-00269-GK Document 44 Filed 03/09/09 Page 6 of 32
54(b) certification since the issue of CFGC’s standing is a final order and there is no just reason to delay appellate review.
CFGC’s MTA explained how the 2000 Mem. shows the Court misunderstood CFGC’s organizational mission and purpose. The new evidence clearly shows Defendants’ challenged actions are, in fact, at loggerheads with CFGC’s organizational mission to place and support Charismatic clergy representing CFGC churches as chaplains in the Navy.
Defendants’ opposition (the “Opp.”) wrongly claims CFGC’s Rule 54 motion is meritless, id. at 5-13, and the Court should deny CFGC’s request for entry of final judgment, id. at 13-16. Defendants’ arguments ignore both the facts and the law. Analysis of Defendants’ own arguments and admissions shows the Court misunderstood CFGC’s mission and the new evidence, DOD’s endorsement regulations, and law of the circuit require a different result.
Defendants’ arguments in support of their flawed reasoning attempt to mislead the Court both as to the availability of the “new” evidence and the MTA’s timeliness. Because these allegations could divert the Court’s attention from the real issues at hand, CFGC will first address Defendants’ mischaracterizations and false statements. I. CFGC’S MOTION IS TIMELY AND ITS EVIDENCE IS NEW AND RELEVANT
“[T]he discovery of new evidence not previously available” and new precedent are two criteria under rule 54(b) for altering or amending an order or decision. Keystone Tobacco, Inc. v. United States Tobacco Co., 217 F.R.D. 235, 237 (D.D.C. 2003) (listing criteria for granting a Rule 54(b) motion). CFGC’s MTA presents evidence not available when the District Court made its 2000 decision holding CFGC had not suffered injury in fact and had no standing in its own right. This new evidence, in the light of DOD’s 2004 new regulatory explanation and definition of “endorsement”, would produce a different result under controlling precedent. See
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MTA at 4, 12-38. CFGC’s new evidence shows among other things: (1) Defendants have used a set of favorite denominations to make decisions rejecting CFGC chaplain applicants; (2) CFGC’s chaplain applicant acceptance rate is statistically significantly below that of Catholics, liturgical Protestants, and many Non-liturgical faith groups; (3) Defendants’ favorite denominations which do not include CFGC - have statistically significantly higher rates of acceptance than CFGC and other Non-liturgical faith groups; and (4) the same pattern of preference for Defendants’ favorite denominations and prejudice against CFGC is evident in promotions.
Faced with this data, Defendants do not show CFGC’s statistics are incorrect, its percentages are wrong, or the computation of statistical significance is incorrect. Instead, Defendants attempt to mislead the Court and color its examination of CFGC’s MTA with a consistent theme suggesting or falsely claiming CFGCs evidence is not new and CFGC improperly or unreasonably waited eight and a half years to bring its MTA. Opp. at 2 (“purported new evidence”), 5 (Plaintiffs claimed new evidence), 10 (“data long in Plaintiffs’ possession”), 15 (“But as we have already explained, what Plaintiffs characterized as ‘new evidence’ is indeed neither new nor evidence.”). Defendants never explain exactly when CFGC should have brought its MTA, how and when CFGC could have anticipated the result of Chaplaincy, decided in July 2006, or exactly when the “new” evidence was available, making it “old”. Defendants’ false claims of old data and delay fail for two reasons. First, Defendants obstructed and delayed producing evidence in discovery necessary for Dr. Leuba’s resulting statistical studies and analysis which clearly show Defendants’ denominational hierarchy and prejudice. Second, Defendants cannot show CFGC sat on the data and did not file in a timely manner. Defendants’ claims are misleading at best or deliberately false.
There are three questions relevant to this issue: (1) when did Defendant’s produce the
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documents necessary to reach the findings and conclusions in CFGC’s expert reports, (2) is it relevant to the matters at hand, and (3) did CFGC unreasonably delay in bringing its MTA? The answers to these questions show Defendants’ arguments have no validity and are merely an effort to distract the Court’s attention by wrongly and falsely discrediting CFGC. CFGC addresses them first lest Defendants’ false assertions color the Court’s review of the other issues.
A. Defendants Failed to Provide Critical Accessions Information Until July 2006 Defendants misleadingly argue CFGC’s new evidence is not new and CFGC has had it for 81/2 years. Opp. at 2, 5, 10, 15. CFGC’s new evidence shows a nexus between the faith group identification of Defendants’ Chaplain Accession and Recall Evaluation (“CARE”) board members, the frequency of denominational board memberships on such boards, and the results following their review of chaplain applicant records, including CFGC’s.1 Analysis of Defendants’ CARE Board records and memoranda shows Defendants used a favorite set of denominations for board memberships and chaplain applicants from those denominations did statistically significantly better than CFGC and other Non-liturgical faith groups. Among those favored board memberships or faith groups who routinely make decisions rejecting CFGC’s applicants are denominations historically, doctrinally opposed to CFGC’s worship practices and theology. The statistical evidence further shows a similar nexus between the faith group identification of chaplain board members making decisions awarding or denying government
1 A CARE Board reviews every chaplain applicant’s application package and makes recommendations to the Chief of Chaplains (the Chief). CARE board membership was made up exclusively of chaplains until some time after this litigation was filed when one non-chaplain was added unofficially to the Board’s membership. There is no record of the Chief ever disagreeing with a Board recommendation concerning a CFGC applicant. In effect, the Board’s rejection was final. Defendants’ records show few reasons for applicant rejections, e.g., a moral problem or problem with DOD’s criteria. These reasons do not apply to CFGC applicants.
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benefits for other chaplains, including CFGC chaplains, e.g., promotion and retention decisions, the frequency of their appearance on such boards, and the results of their decisions. In all cases the data shows the denominations favored in board memberships did statistically significantly better than denominations or faith groups who did not have board members or whose board members were not among the favorites, e.g., CFGC.
The facts show Defendants sat on the critical data establishing the above nexus for years, improperly denying timely production. Defendants conveniently forget the information Dr. Leuba, Plaintiffs’ expert, used to first establish the above cited nexus between denomination of board members, frequency of appearance, and results on Defendants’ CARE boards was not produced until July 14 and 27, 2006, at his deposition in Larsen v. U.S. Navy, No. 02cv2005. As Dr. Leuba recounts in his September 27, 2006, Declaration Withdrawal and Correction (“W&C”), Exhibit 17 to Plaintiffs’ Rule 54(b) Motion, Doc. No. 21 (incorporated by reference), withdrawing and amending his 2005 Larsen accessions declaration: “On July 14 [at his deposition] and 27, 2006, I was provided with copies of paper records and electronic files produced by the Navy which I had not seen before.” W&C ¶ 2. These records had been given to Defendants’ expert, Dr. Siskin, many months before for his use in preparing his report, but had not been produced to the Larsen plaintiffs, despite repeated requests, until Dr. Leuba’s deposition. Id. at 4 n.2.
Examining the records, Dr. Leuba found both he and Defendants’ expert “were mislead, misdirected, by the records that the Navy chose to produce and we both treated the data as though (i.e. assumed that) they represented the accession process” which they did not. W&C ¶ 5. When he prepared his 2005 Declaration addressing what he thought were accessions (some portions of which he withdrew in his 2006 W&C), “the only data I had been given was an incomplete set of
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CARE work sheets. I had been given no CARE Decision Memoranda and no context.” W&C ¶ 29c. Dr. Leauba’s W&C identifies both the data which gave him context and Defendants’ Counsel’s questions about specific programs which the prior incomplete records had concealed. “With a sufficient body of data at hand, I was able to see that the Work Sheets dealt with “acdu”[active duty] only, and with further research I was able to unravel/decipher the accession process and its relationship to acdu changes.” W&C ¶ 29e. The CARE Board memoranda produced in 2006 identified for the first time the faith group of CARE board members. This identification was critical to establishing Defendants’ use of a favored set of denominations for CARE Board memberships and establishing a correlation between these memberships and the resulting bias in the results.
Defendants have ignored the fact it was the 2006 attack by their expert, Dr. Siskin, on Dr. Leuba’s analysis, which led Dr. Leuba to publish “The Siskin Conjecture,” establishing the Defendants’ preferred hierarchy of denominational decision makers and its resulting bias in the benefit decision process. Prior to this time, the research had focused on differences in treatment between faith group categories (FGC). The inclusion of Southern Baptists, a major faith group in the Non-liturgical FGC but one of Defendants’ favored denominations, had skewed the FGC statistics, hiding or masking Defendants’ prejudice toward non-Baptist Non-liturgical faith groups like CFGC, and allowing Defendants to argue there was no statistical significance in faith group comparisons.
The Rule 54(b) Motion by all chaplain plaintiffs, In re Navy Chaplaincy, Doc. No. 21, pp. 16-20 (incorporated by reference) describes Dr. Leuba’s sequence of discovery efforts and subsequent results as the data became available. The new data opened up new analyses of the various ways Defendants’ prejudice corrupted its chaplain benefit decision process.
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Defendants also conveniently forget their recalcitrance and obstruction in providing meaningful discovery material in promotions and retentions. Defendants initially redacted the names of candidates for promotions, active duty continuation (after 3 years), and selective early retirement. See Exhibits 1 (promotions) & 2 (SER). Obviously, without the names and denominations of both those considered and those selected, there can be no meaningful analysis. The dispute continued until chaplains’ counsel went to San Diego, CA, and obtained copies of the promotion and SER precepts Defendants produced in Sturm v. Danzig, 99-cv-2272 (S.D. Cal.). Defendants changed their tactics after the Plaintiffs’ counsel explained to Defendants’ counsel their conduct was bad faith in light of their previous discovery production.
CFGC regrets using the Court’s time to detail Defendants’ recalcitrant conduct, but Defendants’ irresponsible allegations with the obvious purpose to discredit CFGC’s MTA could not reasonably or responsibly be ignored.
B. CFGC’s New Material is Relevant Defendants’ theme in opposing CFGC’s MTA is the new material, i.e., statistical evidence, DOD regulations, and Chaplaincy’s holding on irreparable harm, is not relevant. Opp. at 2, (“ Plaintiffs’ purported new evidence - in general, the opinion testimony of the proffered expert witness - is irrelevant”); 10 (“none of that opinion testimony - even assuming arguendo that it is admissible as the product of proper statistical analysis - is remotely relevant to whether the Court’s opinion of August 17, 2000, should be altered”); 14 (cited DOD Directives are not relevant). Like Defendants’ other assertions, this has no basis in fact or law. “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. In every case, the new evidence is relevant: the
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material tends to make the existence of facts showing harm to CFGC, i.e., injury in fact, more probable. This is of consequence to the determination whether the Court should amend or alter its 2000 decision.
CFGC’s new statistical evidence supports its allegations Defendants’ religious prejudice was the reason for denying CFGC its opportunity and right to represent its member churches to the Navy, subverting CFGC’s organizational goals. Defendants’ attack this new evidence as “opinion testimony”, Opp. at 2 &10, but fail to address two facts. First, it is now incorporated into CFGC’s 4th Amended Complaint, hereafter the “4th AC”, and presumed to be true unless shown otherwise. Second, Defendants have failed to show Dr. Leuba’s statistics, based on the numbers of candidates reviewed and rejected by the various boards, the board membership numbers of the various faith groups derived from Defendants’ records, and the resulting percentages in various statistical categories are wrong. The Court was previously impressed with the chaplain Plaintiffs’ presentation of “hard statistics” to support their claims. See Adair v. England, 183 F.Supp.2d 31, 56 (D.D.C. 2002) (“In support of their claim, the plaintiffs provide hard statistics”). “In this case the court determines that the statistics the plaintiffs cite are indeed well-pled factual allegations.” Id. Defendants provide no authority or rationale for reaching a different conclusion. As shown below, these “well-pled factual allegations,” applied to CFGC’s fundamental organizational mission and programmatic concerns, show Defendants’ adverse actions are at loggerheads with CFGC’s organizational mission and have injured in fact CFGC.
The 2004 DOD regulations are relevant to whether the Court in 2000 properly understood the full scope, meaning and implications of DOD Instruction (DODI) 1309.28's clear definition of “endorsement.” As II.A explains below, endorsement is more than filling out a form. Endorsement is the process of representing a church, faith group or religious organization to the
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Navy and other military services when a candidate applies for appointment and after he/she is appointed as a chaplain. This is relevant to the question whether that definition, applied to the evidence or the presumption CFGC’s allegations are true, would lead to a finding Defendants’ actions, designed to keep CFGC from representing its churches before the Navy, was in “direct conflict with [CFGC’s] fundamental purpose,” see Opp. at 12 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982)). DOD’s new regulations show Defendants’ actions were and are in direct conflict with CFGC’s “fundamental purpose” and mission, to represent its member churches to the Navy.
Defendants’ attack on the relevancy and importance of Chaplaincy’s finding, Opp. at 1011, ignores the fact irreparable harm is injury in fact. The standard for irreparable harm is higher than the injury necessary for standing. See Assoc. of Gen Contractors of Cal., Inc. v. Coal for Econ. Equity, 950 F.2d 1401, 1410 (9th Cir. 1991), cert denied, 503 U.S. 385 (1992). Defendants ignore the fact Chaplaincy also defines the injury resulting from Defendants’ unconstitutional denominational preference in CARE and promotion board memberships. The harm is the message Defendants communicate to CFGC, the target of Defendants’ living messages of preference and prejudice. Chaplaincy, 454 F.3d at 302. Defendants’ harmful actions are directed at CFGC, whose worship practices and theology offends and is contrary to the CARE and promotion board members. See 4th AC ¶ 102 (“Many Baptists strongly or violently disagree with CFGC members’ charismatic worship practices and theology.”). Chaplaincy, 454 F.3d at 302, is relevant precedent because it defines the harm Defendants’ message and actions inflict on CFGC.
C. CFGC’s Motion to Amend and New Material Are Timely Defendants incorrectly suggest throughout their Opposition CFGC’s Motion is untimely, that it should have been brought years earlier. Opp. at 2, 8, 15. Defendants fail to address
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exactly when CFGC should have brought its motion and presented its new material. DOD published its new regulations at the end of 2004. As shown in A above, Defendants have forgotten or ignored the fact they did not provide critical CARE Board and accessions material until July 2006, allowing Dr. Leuba to establish toward the end of 2006 and 2007 both a hierarchy of Defendants’ favorite denominations and the results in terms of favoritism and prejudice flowing from Defendants’ use of denominational favorites as decision makers.
Chaplaincy was decided in mid-2006, but because the issue involved an injunction and irreparable harm, the parties devoted their attention to that issue. In June 2007, the Court consolidated CFGC and Adair with Gibson v. U.S. Navy into the present case, further delaying the Chaplaincy injunction issue. The Associated Gospel Churches (“AGC”), a Gibson plaintiff, like CFGC attacks Defendants’ use of chaplains on boards awarding or denying benefits because (1) Defendants have used a favorite set of faith groups as board members, and (2) the delegation of discretionary civic power to persons defined by their denominational identity fuses civic and religious power, contrary to the Establishment Clause. Compare 4th AC ¶¶ 157-162, and Gibson AC, ¶¶ 3.b (AGC) and 36 (addressing CARE Boards). The CFGC and Adair Plaintiffs have moved to alter or amend the Court’s Adair 2002 decision, 183 F.Supp.2d at 60-61, on two issues addressing chaplains’ nature when serving on selection boards. Defendants have subsequently attacked AGC’s (and CFGC’s) ability to challenge such delegation. CFGC and Adair plaintiffs subsequently moved to amend their complaints to align them with Gibson and its new evidence, incorporating the new statistical evidence therein. The Court approved those amendments.
In opposing Defendants’ subsequent Motion for Judgment on the Pleadings, CFGC’s counsel stated CFGC would move to alter or amend the Court’s 2000 decision, the logical result following the Court’s approval of CFGC’s 4th AC. MTA at 2-3 (explaining basis for motion).
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In denying Defendants’ opposition to CFGC’s 4th AC, the Court followed wellestablished precedent holding there is no time limit on such amendments, provided such amendment does not prejudice defendants or the delay is unreasonable. The burden to show both prejudice and unreasonable delay rests with Defendants; they show nothing here. Accordingly, the Court should ignore Defendants’ baseless allegations and empty rhetoric. II. CFGC’S PETITION MEETS RULE54(b) REQUIREMENT AND AMENDING IT
IS IN THE INTEREST OF JUSTICE Defendants agree “to confer standing on an organization, an injury-in-fact must represent the product of an activity in direct conflict with the organization’s fundamental purpose.” Opp. at 11-12 (citing Havens Realty, 453 U.S. at 378). Analysis of the 2000 decision, especially as interpreted by Defendants, shows the Court misunderstood CFGC’s organizational purpose, to place Christian charismatic clergy in the Navy chaplaincy and support them throughout their careers as Navy chaplains so Christian charismatic Navy personnel would be able to worship in accord with their faith group practices and beliefs. The undisputed evidence shows the defendants’ activities are and have been “in direct conflict with [CFGC’s] fundamental purpose.” A. The District Court’s Decision Shows it Misunderstood CFGC’s Mission and
Organizational Objectives if it Accepted CFGC’s Allegations as True Defendants’ first argument is the District Court accepted CFGC’s allegations as true, Opp. at 6-9. However, the specific items Defendants cite, id. at 7, show either the District Court in 2000 misunderstood CFGC’s mission and organizational objectives or it did not accept CFGC’s allegations as true. Defendants’ citation to the District Court’s characterization of CFGC’s mission and organizational purpose illustrates and exemplifies the District Court’s misunderstanding: “CFGC was founded and exists for the purposes of identifying and endorsing ‘Low Church’ clergy to meet Department of Defense standards for commission as chaplains.”
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Id. (citing 2000 Mem. at 4). Defendants’ and the Court’s alleged description of CFGC’s mission highlights the District Court’s lack of understanding of the complete role, definition, process and requirement of “endorsing.” The District Court’s decision in the light of the facts it allegedly accepted as true, shows it understood “endorsement” as merely the process of filling out DOD Form 2088, DOD’s official endorsement form. Absent from the Court’s apparent understanding, as reflected in its decision, is (1) filling out the DOD Form 2088 is only one necessary step in the process, (2) endorsement is more than “sponsorship” as the defendants describe it, Opp. at 8, and (3) the unique worship practices of CFGC churches, 4th AC ¶¶ 2, 6, 17.b, 21, 22, 33.g, 39.b, 66.f, 67, 102, 110, which gives special meaning to the phrase “to represent.”
Endorsement is both a constitutional concept and requirement not only for appointment as a chaplain but for a continued career as one; it is a unique Establishment Clause requirement for the military. The new regulations CFGC cites define endorsement as the authority to represent specific faith groups, including their worship practices and beliefs, to the military services. Merely filling out the form does not satisfy CFGC’s organizational purpose to endorse chaplains, meaning to put charismatic clergy in the Navy as chaplains and thereby “represent” CFGC’s independent charismatic churches to the Navy. Nothing in the District Court’s 2000 decision indicates it understood endorsement as a critical and integral part of “representing” a unique faith perspective to the Navy, CFGC’s core purpose and mission as stated in the Complaint, which Defendants’ prejudicial actions prevent.
1. Endorsement is the ability to represent a faith group to the military “CFGC was founded to endorse as chaplains those clergy who meet the Department of Defense (“DOD”) requirements for chaplains and whose religious beliefs reflect those of CFGC member churches.” 4th AC, ¶ 3; 2d and 3d Amended Complaint (“2 & 3d AC”) ¶
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13 (same language). CFGC stated its mission in a manner consistent with its purpose for being formed: “CFGC is an organization formed to represent the American citizen members of independent, non-denominational charismatic or ‘Full Gospel’ churches and fellowships before the Armed Forces Chaplains Board and the military chaplain corps.” 4thAC at ¶ 6 (emphasis added); same language in 2d & 3d AC, ¶ 6. Its mission, to represent its member churches before and in the Navy, is fully consistent with and an integral part of DOD’s definition of both the function and role of an endorsing agency and DOD’s endorsement process and procedures. Simply stated, endorsement is the process that allows clergy to be appointed as chaplains for the purpose of and in order to represent their faith groups or endorsing bodies such as CFGC to the Navy as Navy chaplains, as shown below.
This representation is necessary for DOD to fulfill its constitutional duty “to provide for the free exercise of religion in the context of military service,” DOD Directive (“DODD”) 1304.19, ¶ 4. DOD has clearly stated its policy concerning the purpose and function of chaplains and the respective chaplain corps: “Chaplaincies of the military departments: Are established to advise and assist commanders in the discharge of their responsibilities to provide for the free exercise of religion in the context of military service as guaranteed by the Constitution....” Id. and ¶ 4.1. DODI 1304.28 implements DODD 1304.19 “identif[ying] the educational and ecclesiastical requirements for appointment of military chaplains,” ¶ 1.3, and explaining and defining DOD’s endorsement requirement and criteria. “To be considered for appointment to serve as a chaplain, an RMP [religious ministry professional] shall receive an endorsement from a qualified Religious Organization verifying “[DOD’s] requirements for RMPs are met”, ¶ 6.1.
DOD defines RMP as: “An individual endorsed to represent a religious organization and to conduct its religious observances or ceremonies.” Id. at ¶ 2.1.9 (emphasis added). DOD
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defines endorsement as: “The internal process that Religious Organizations use when designating RMPs to represent their Religious Organizations to the Military Departments and confirm the ability of their RMPs to conduct religious observances or ceremonies in a military context.” Id. at ¶ E2.1.7 (emphasis added). The consistent, key word and essential concept expressed in DOD’s regulations, and key to its endorsement scheme is “represent.” Chaplains are RMPs or qualified clergy appointed as chaplains to represent their faith groups and/or religious organizations. As CFGC and the other plaintiffs have alleged, chaplains are clergy appointed as faith group representatives on loan from their faith communities to the military services. See ¶ 2, Declaration of AFCB Executive Director, Chaplain (COL) Cecil Richardson, USAF, for the DOD defendants, including the Navy, in Rigdon v. Perry, 962 F.Supp. 150 (D.D.C. 1997) (Exhibit 3). A Catholic chaplain represents the Catholic Church to the Navy, just as a Southern Baptist chaplain represents the churches of the Southern Baptist Convention and a CFGC chaplain represents CFGC’s member independent charismatic churches to the Navy.
Chaplains or RMPs are “on loan” to the respective Armed Forces because the term “loan” indicates the “ownership” of the chaplain resides in the chaplain’s endorser or faith group, not the military. All other military officers are effectively “owned” by the military services. The Navy recognizes the unique status of chaplains as denominational representatives because the Navy excuses chaplains from the duties associated with exercise of the sovereign’s will given to all other officers. Secretary of Navy Instruction (“SECNAVINST”) 1730.7B, Subj: Religious Ministry Support Within the Department of the Navy, ¶ 4, specifically states:
In accordance with Article 1063 of [Navy Regulations, 1990], chaplains shall be detailed or permitted to perform only such duties as are related to ministry support. Chaplains shall not bear arms. Chaplains shall not be assigned collateral duties which violate the religious practices of the chaplain’s faith group, require services as director, solicitor, or treasurer of funds other than administrator of a Religious
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Offering Fund, serve on a court-martial or stand watches other than that of duty chaplain. All other officers bear arms and serve as duty officers, but “Chaplains shall not be assigned collateral duties which violate the religious practices of the chaplain’s faith group.” 10 U.S.C. § 643 (Separation of chaplain for loss of professional qualifications) statutorily emphasizes and establishes the nature of the chaplain’s role as a faith group’s representative on loan to the military. If a Religious Organization or endorsing agency determines one of its chaplain representatives to the military no longer accurately represents the endorsing organization and withdraws its endorsement, § 643 requires the Navy to separate the chaplain from the Chaplain Corps.2 The Navy must follow certain procedures and protocols to separate a naval officer depending on whether the officer is a Regular or Reservist, but as shown above, a chaplain must be separated if his or her endorser withdraws its approval to allow the chaplain to represent the endorsing faith group or body. DODI 1304.28, ¶ 6.5, “Administrative separation of chaplains upon loss of professional qualification”, implementing § 643, explains the process and illustrates and reinforces the purpose and nature of chaplain appointments, to represent their endorsing body. It defines “loss of professional qualification” as “a chaplain [who] loses ecclesiastical authority to function as an RMP or has ecclesiastical endorsement to serve as a chaplain withdrawn,” id., meaning the RMP/chaplain’s religious organization has determined the chaplain no longer represents it appropriately or adequately. The Religious Organization’s endorsement, in this case CFGC, is a certification the RMP is authorized to represent CFGC and its churches to the Navy. Although
2 Klingenschmitt v. Winter, 375 Fed. Appx. 12 (D.C.Cir. 2008), an unpublished decision, upheld the mandatory nature of a Navy chaplain’s discharge after losing his endorsement. It is cited as an example Defendants’ representation of § 643's mandatory nature, not for authority.
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CFGC’s endorsement is recorded on a DOD Form 2088, filing a 2088 is not the objective of CFGC because the 2088 means nothing and CFGC’s mission is incomplete unless the Navy accepts CFGC’s chaplain candidate.
“Endorsement” has no utility or function outside of the chaplain appointment process and chaplaincy context. The Navy’s rejection of a CFGC chaplain applicant is, in fact, a rejection of CFGCs endorsement and therefor a rejection of CFGC’s attempt to represent its churches to the Navy. Likewise, failure to promote a CFGC chaplain based on religious prejudice and separation therefor, is the Navy’s rejection of CFGC’s representation before the Navy.
2. The Constitution requires the Navy to provide a chaplaincy Congress has provided for chaplains almost from the Navy’s beginning. Katcoff v. Marsh, 755 F.2d 223, 231-34 (2d Cir. 1985), found a military chaplaincy was a constitutional requirement and must comply with the Constitution. Katcoff rejected a constitutional challenge that Congress’s funding the Army Chaplain Corps impermissibly entangled the government and religion. The court noted that military service realities restricted soldiers’ ability to exercise their First Amendment Free Exercise rights, id. at 228 (“mobile, deployable nature of our armed forces”), causing conflict with the Establishment Clause’s neutrality mandate that the government neither hinder nor establish a religion. “[I]f the Army prevented soldiers from worshiping ... by removing them to areas where religious leaders of their persuasion and facilities were not available[,] it could be accused of violating the Establishment Clause unless it provided them with a chaplaincy since its conduct would amount to inhibiting religion.” Id. at 232 (emphasis added). Katcoff then held the Army chaplaincy was a constitutional necessity, Congress’s necessary and required accommodation of competing Constitutional commands, in order to allow soldiers to exercise their Free Exercise Clause right to practice their freely chosen religion regardless of
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where the Army might send them.

It is readily apparent that [the Free Exercise] Clause, like the Establishment Clause, obligates Congress, upon creating an Army, to make religion available to soldiers who have been moved by the Army to areas of the world where religion of their own denominations is not available to them. Otherwise the effect of compulsory military service3 could be to violate their rights under both Religious Clauses of the First Amendment. Unless the Army provided a chaplaincy it would deprive the soldier of his right under the Establishment Clause not to have his religion inhibited and of his right under the Free Exercise Clause to practice his freely chosen religion.

Id. at 234. See also id. at 237 (citing congressional hearings on necessity for military chaplains

and, “[t]he purpose and effect of the [chaplaincy] is to make religion ... available to military

personnel under circumstances where the practice of religion would otherwise be denied as a

practical matter to all or a substantial number.”).

3. The concept that endorsement allows a chaplain

his faith

to represent

group or religious body is unique to the military but required by the

Constitution

The phrase “to represent their Religious Organizations to the Military

Departments” in DOD’s definition of endorsement has special meaning here. Representation is a

unique but necessary constitutional concept for the Chaplain Corps. A Navy attorney or doctor

does not represent his bar or medical association to the Navy. A line officer does not represent his

college, university, home town or any other organization or body. But chaplains are endorsed to

represent their endorsing bodies’ religious beliefs and practices to the Navy, a requirement the

Constitution mandates.

3 “Compulsory military service” in the context of the decision and discussion refers to orders to deploy or relocate which are compulsory. The draft, which made military service compulsory, ended in 1972, years before Katcoff was filed. The Court’s discussion cannot be affected by whether military service is compelled or voluntary since government employment cannot be conditioned on the surrender of a constitutional right.
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A CFGC chaplain must represent CFGC and its member churches to the Navy, i.e., to Navy personnel, not only because the chaplain is by definition a CFGC representative, but because the Navy, as a government organization, may not actively involve itself “in religious activity.” See Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 337 (1987). Although the Navy may provide facilities, the time, and pay the chaplain in order to accommodate the religious practices of its personnel, see id. and 2 above, it is not the Navy which is providing the religious service, but the faith group representative appointed as a chaplain to represent his church to the Navy. That is why DOD is very careful to define a chaplain as a faith group representative who represents the chaplain’s endorser/faith community to the Armed Services for the purpose of providing religious services and ministry. A CFGC chaplain is CFGC’s representative to the Navy. CFGC’s mission, stated in its complaint, is to find, qualify and provide clergy from its charismatic churches to represent its member churches to the Navy, enabling charismatic naval personnel to freely exercise their religion as guaranteed by the Free Exercise Clause. CFGC’s purpose parallels and supports DODD 1304.19's policy and performs a service which DOD itself cannot provide.
DOD’s requirement to provide chaplains suitable for military personnel to freely practice their individual religions raises another constitutional dilemma for DOD. That is who determines which religious persons/clergy are suitable or appropriate to minister to the variety of faith groups, denominations, and religious organizations reflected in the Armed Forces. Determining who is suitable to conduct a faith group’s services, teach, or otherwise provide religious ministry for a faith group’s military members would impermissibly entangle government in purely religious activities and doctrinal issues. The Establishment Clause prohibits the government from making this determination, as several court decisions discussed below have found.
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DOD established the concept and practice of endorsement to avoid entanglement in religious matters in two aspects. First, endorsement leaves the question of who is qualified to represent religious groups to the military to the respective religious groups themselves. Second, endorsement defines the role and function of chaplains as faith group representatives who represent their faith group to the military. This avoids the appearance of entanglement when chaplains, who are also military officers, conduct religious services. See Rigdon, 962 F.Supp. at 159 (“The content of [chaplains’] services and counseling bears the imprimatur of the religious ministries to which they belong.”), id. at 159-60 (“regulations contemplate chaplains act as representatives of their religions when conducting services or performing rituals”). As indicated above, the ability of endorsers to withdraw their endorsement at any time for any reason is a necessary condition of keeping the government neutral on the question of who represents a faith group. The endorsement process and concept has survived several constitutional challenges.
Turner v. Parsons, 620 F. Supp. 138 (E.D. Pa. 1985), rejected an unsuccessful Veteran Administration (the “VA”) chaplain applicant’s challenge to the VA’s endorsement process, similar to and modeled on DOD’s. The plaintiff Catholic priest’s religious society supervisor approved his application to be a VA chaplain but “the Military Vicariate, a central [endorsing] agency of the Catholic Church, did not grant its endorsement.” Id. at 139. He challenged the VA’s deference to the Military Vicariate, arguing “the government’s requirement of prior church approval of chaplaincy candidates permits excessive entanglement between church and state relations”, violating the third test of Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). Id. at 141. The court adopted and applied the logic of Katcoff to the VA’s chaplain system while distinguishing Larkin v. Grendel’s Den Inc., 459 U.S. 116 (1982). It found Larkin involved the Court’s “refusing to allow a church to control matters which are primarily secular.” Id. at 142.
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The case before the court involved religious matters: “In the matter before me, there is a requirement that a church endorse a person who will represent the church to servicemen and servicewomen.” Id. (emphasis added).
For this court to decide who may or may not represent a certain religion would be for this court to go to the heart of religious organizations and their beliefs and impermissibly interfere in their operations. I cannot conceive of any greater interference or entanglement a government could launch than to dictate who may or may not represent their religious faith to its flock. Moreover, if this were to be done, it would change or interfere with the expectations the followers of a certain religious faith may have, as the government would be the party which would determine who will lead the flock. Id. The court concluded “I hold, as a matter of law, that for the government to determine who is qualified from the various religious faiths to lead the flock of Catholicism would be for the government to impermissibly interfere or entangle itself in religion.” Id. at 143. See also, Murphy v. Derwinski, 776 F.Supp. 1466, 1471-72 (D.Col. 1991) (rejecting Establishment Clause challenge to VA’s endorsement system by female applicant rejected for position of Roman Catholic chaplain at a VA hospital).
4. CFGC’s allegations, if taken as true, show it has been injured because Defendants’ activities are at loggerheads with CFGC’s organizational goals and programmatic concerns
If the District Court understood DOD’s definition of endorsement as faith group representation to the Navy and accepted as true CFGC’s allegations, the District Court in 2000 would have had to conclude Defendants’ activities were at loggerheads with CFGC’s mission and organizational goal to represent its churches to the Navy. CFGC’s goal can only be realized when the Navy appoints CFGC’s applicants as chaplains, i.e., the Navy accepts CFGC’s endorsement and appoints CFGC RMPs as chaplains. CFGC alleges the Navy unlawfully rejects CFGC’s endorsement because of the worship practices of CFGC’s member churches. The new evidence
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supports that allegation and defendants provide no neutral, secular reason for the large number of CFGC rejections, evidence of the effect of Defendants’ hostile actions.
Defendants correctly acknowledge that injury in fact requires “more than a conflict - or a mere setback - discrete and programmatic concerns must be directly affected by the defendant’s conduct.” Opp. at 8 (citing 2000 Mem. at 8-9). The Defendants state: “the Court concluded that the alleged discrimination in this case did not go to the heart of CFGC’s fundamental purpose as an organization.” Id. at 9, see also id. at 11 n.2 (“the acts of discrimination alleged by [CFGC] even if accepted as true do not directly conflict with the core purpose of CFGC.”). Defendants’ explanation and argument proves CFGC’s position. Defendants’ actions, as established by the data, are designed to keep, and have kept, CFGC applicants from representing CFGC and its churches to the Navy. Their unlawful rejections subvert and attack the heart of CFGC’s core purpose, representing CFGC churches to the Navy as the DOD Regulations explain. The objective of the Havens Realty organizational plaintiff was to put people in homes; CFGC’s purpose it to put its clergy in the Navy to represent CFGC churches.
The following Defendants’ statement shows their confusion about the 2000 Decision: “unlike the organizational plaintiffs in Havens Realty, CFGC is not at its core structured to ensure equal protection for Non-liturgical chaplains or chaplain candidates; rather, any efforts CFGC has expended to offset or mitigate the effects of alleged discrimination against the chaplains or chaplain candidates are ‘tangential’ to its core function: the sponsorship of clergy for service as military chaplains.” Id. at 8 (citing 2000 Mem. at 9-10). The 2000 Mem. at 15-17 (not at 9-10) dismissed CFGC’s “Race and Gender” issues. This is not related to the Court’s denial of standing. Equal opportunity is a constitutional right, which CFGC was not accorded when presenting its chaplain candidates. The new evidence shows CFGC was injured by Defendants’
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failure to treat it in a neutral and equal manner when evaluating its candidates for appointment. Rejection of CFGC applicants is not tangential to its mission.
Defendants’ argument about “zone of interest”, Opp. at 11 n.2, misses the mark. Chaplaincy defined the “interest” the Establishment Clause protects, 454 F.3d at 302. Defendants’ actions have invaded that interest. The Establishment Clause zone of protected interest extends to accessions and other challenged actions. See Adair v. England, 217 F.R.D. 7, 14-15 (D.D.C. 2002) (Court will apply strict scrutiny); Adair, 183 F.Supp.2d at 52-53 (same).
B. The New Material Shows Defendants’ Actions are at Loggerheads with CFGC’s Concerns and Core Purpose
While the District Court’s misunderstanding of CFGC’s organizational purpose may be gleaned from its words denying CFGC standing and the facts it allegedly accepted, the issue before the Court is whether the new material and precedent would lead to a different result.
Most of CFGC’s new evidence is now in its 4th AC. If this is taken as true, CFGC has been injured, as shown above in A. DOD defines endorsement as to represent a religious organization, i.e., CFGC, to the Navy. CFGC’s new evidence shows Defendants’ challenged practices keep CFGC chaplain applicants out of the Navy so CFGC cannot represent its churches to the Navy. This puts Defendants actions at loggerheads with CFGC’s core purpose, to put CFGC clergy in the Navy, causing CFGC to incur financial losses, e.g, its recruiting and processing costs are lost due to Defendants’ illegal actions. See 4th AC ¶ 39. Chaplaincy’s definition of Establishment Clause injury flowing from Defendants’ religious preferences, and the resulting prejudice to CFGC, further establishes CFGC has been injured in fact.
C. Amending the 2000 Decision Is in the Interests of Justice This action is now in its 10th year. The evidence shows Defendants have established
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denominational preferences to award or deny chaplain appointments, a government benefit, and those preferences have harmed CFGC. This Court has already held it will apply strict scrutiny to such preferences. Adair, 217 F.R.D. at 14-15. The issue of Defendants’ CARE Board procedures is readily addressed by summary judgment, which would resolve a major issue in this litigation, advancing the case. It would also remove a major obstacle to CFGC’s mission of providing qualified CFGC charismatic clergy to the Navy, a function DOD has delegated to CFGC. III. IN THE ALTERNATIVE, A RULE 54 (b) FINAL JUDGMENT IS APPROPRIATE
CFGC, in the alternative, has requested a “final judgment as to the standing of CFGC to bring suit on its own behalf, allowing Plaintiffs4 [sic - CFGC] to immediately appeal that ruling to the D.C. Circuit.” Opp. at 13. Although Defendants object to this, Opp. at 13-16, and cite the proper authority and criteria for such a ruling, id. at 13-14, they provide no substantive reason why the Court should not grant CFGC’s motion, and why there is just reason for delay. Defendants do not contest the fact that if the Court denies CFGC’s MTA, the CFGC standing issue would be a final judgment. The whole thrust of Defendants’ argument, Opp. at 5-12, is the Court should deny CFGC’s MTA, because the Court’s 2000 decision should was proper.
As to the equities why “there is no just reason for delay,” see Cooper v. First Government Mortgage & Investors Corp., 216 F.R.D. 126, 127 (D.D.C. 2002) (quoting Rule 54(b) and citing Curtis-Wright Corp. v. General Electric Co., 446 U.S. 1, 8 (1980)), Defendants incorrectly suggest “there is no harm of Plaintiffs [sic] by delay until all the claims are decided,” Opp. at 14; CFGC has not brought its MTA “in a timely fashion,” id. at 15; CFGC’s new evidence “is neither ‘new’ nor ‘evidence,’” id.; and without explanation, there would be overlap “between the question
4 Defendants frequently refer to “Plaintiffs” in the plural. The motion addresses CFGC as an organization and no other plaintiff.
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of CFGC’s direct organizational standing and the remaining claims of all Plaintiffs,” id. at 16. Defendants provide no support for their baseless assertions.
The Janus-like nature of Defendants’ argument is evident in their previous argument that chaplains, including CFGC chaplains, cannot challenge Defendants’ accession system and CARE boards and their prejudicial results because the chaplains can show no injury since a CARE Board approved them. Defendants argue the other plaintiffs cannot bring this claim. According to Defendants, only CFGC, whose endorsement Defendants rejected or the individual rejected applicants can show harm from the CARE Boards’ prejudice. Thus, whether CFGC suffered harm from Defendants’ CARE Board prejudice addresses a major claim. This argument shows Defendants “overlap” assertion, Opp. at 16, has no basis or support; Defendants provide no other examples of overlap and present no example or show how or why the Court of Appeals would have to address CFGC’s standing issue at a subsequent date.
Defendants have failed to address how the interests of justice are served and furthered by continued delay in addressing their irreparable harm to CFGC and its chaplain applicants which, according to Chaplaincy, 454 F.3d at 302, flows from Defendants’ message of prejudice from their denominational preferences to CFGC. Defendants have not contested Dr. Leuba’s showing a tiered hierarchy or the prejudicial results shown in Features, Tables 2.1, 3, and Figure 5. Granting CFGC’s MTA makes the Court an instrument furthering the fundamental purpose of the Federal Rules, “the just, speedy and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. The “first of the Federal Rules of Civil Procedure mandates construing the rest” in a manner to accomplish Rule 1's touchstones. Wood v. GCC Bend, LLC, 442 F.3d 873, 882-83 (9th Cir. 2005); see also Brown Shoe Co. v. United States, 370 U.S. 299, 306 (1962) (citing the federal procedure “touchstones”).
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CFGC is on record as not recommending its clergy consider serving as Navy chaplains

because of Defendants’ prejudice toward CFGC demonstrated in the statistical evidence. 4th AC,

¶¶ 39.a, 114a, 151. Defendants’ continued prejudice in the CARE Board process is a barrier to

CFGC’s core mission, to place clergy representing its churches in the Navy. It is in the interest of

justice to resolve the standing issue so CFGC can proceed with its legitimate and important role of

doing what DOD and the Navy cannot do, supply chaplains to the Navy to meet the free exercise

rights of charismatic Navy personnel. CFGC filed its action in 1999; it will soon be 10 years

since CFGC challenged Defendants’ prejudice so amply documented in the statistics. This cannot

be justice nor in accord with Rule 1.

Defendants’ “unreasonable eight year delay” and “old evidence” arguments, Opp. at 15,

are answered in I.A & C above. Any delay in analysis is due to Defendants’ delay in producing

the relevant discovery material until 2006.

CONCLUSION

Defendants Opposition has failed to provide any substantive reason for not granting

CFGC’s Rule 54(b) Motion to Amend or Alter. CFGC has shown it is in the interests of justice to

amend the 2000 decision. Accordingly, the Court should grant the MTA and direct the parties to

develop a briefing schedule on the issues appropriate for summary judgment following the Court’s

amendment to its 2000 decision.

Respectfully submitted,

March 9, 2009

/S/ Arthur A. Schulcz, Sr. ARTHUR A. SCHULCZ, SR. Attorney for CFGC D.C. Bar No. 453402 2521 Drexel Street Vienna, VA 22180 703-645-4010 FAX 703-645-4011

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Case 1:07-mc-00269-GK Document 44 Filed 03/09/09 Page 30 of 32 Of Counsel: Douglas McKusick, Esq. THE RUTHERFORD INSTITUTE P.O. Box 7482 Charlottesville, VA 22906-7482
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Exhibit 1 2 3 4

EXHIBIT LIST
Description of Exhibit
Portion of FY 2002 List of Officers in the Competitive Category of Chaplain Corps on the Active-duty List of the Navy in the Grade of Commander Eligible for Consideration for Promotion to the Permanent Grade of Captain
30 November 1995 list entitled: Officers in the Competitive Category of Chaplain Corps on the Active-duty List of the Navy in the Grade of Commander Eligible for Consideration for Selective Early
Declaration of Armed Forces Chaplain Board Executive Director, Chaplain (COL) Cecil Richardson, USAF, for the DOD defendants, including the Navy, in Rigdon v. Perry, 962 F.Supp. 150 (D.D.C. 1997)
Declaration of Arthur A. Schulcz, Sr.

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CERTIFICATE OF SERVICE I hereby certify that on March 9, 2009, I electronically filed the foregoing Plaintiff CFGC’s Reply to Defendants Opposition to CFGC’s Rule 54(b) Motion to Alter or Amend The Court’s August 17, 2000 Interlocutory Decision with the Clerk of the Court to be served by the Court’s CM/ECF system on the following: Christopher Hall Attorney, Civil Division U.S. Department of Justice 20 Massachusetts Ave., NW Room 7322 Washington, D.C. 20001
/s / Arthur A. Schulcz, Sr. ARTHUR A. SCHULCZ, SR. Counsel for CFGC D.C. Bar No. 453402 2521 Drexel Street Vienna, VA 22180 703-645-4010
28

Case 1:07-mc-00269-GK Document 44-1 Filed 03/09/09 Page 1 of 2

22 JANUARY 2001

OFFICERS IN THE COMPETITIVE CATEGORY OF CHAPLAIN CORPS ON THE ACTIVEDUTY LIST OF THE NAVY IN THE GRADE OF COMMANDER ELIGIBLE FOR CONSIDERATION FOR PROMOTI0N TO THE PERMANENT GRADE OF CAPTAIN

CONSEC

NAME .

SSN

DESIG

0001 0002 0003 0004 0005 0006 0007 0008 0009 0010 0011 0012 0013 0014 001$ 0016 0017 0018 0019 0020 0021 0022 0023 0024 0025 0026 0027 0028 0029 0030 . 0031 0032. 0033 0034 0035 0036 0037 0038 0039 0040 0041 0042 0043 0044

Redacted Redacted
Redacted

Redacted
. Redacted Redacted

4105 4100 4100 4100 4100 4100 4100 4100 4100 4100 4100 4100 4100 4100 4100 4300 4100 4100 4105 4100 4100 4100 4100 4100 4300 4100 4103 4100 4100 4100 4100 4100 4105 4100 4100 4105 4100 4105 4100 4100 4105 4100 4100

REDACTED DEFA4112

Enclosure (1)

In Re Navy Chaplaincy 07-mc-269 (RMU) Exhibit 1

Case 1:07-mc-00269-GK Document 44-1 Filed 03/09/09 Page 2 of 2

22 JANUARY 2001

OFFICERS IN THE COMPETITIVE CATEGORY OF CHAPLAIN CORPS ON THE ACTIVEDUTY LIST OF THE NAVY IN THE GRADE OF COMMANDER ELIGIBLE FOR CONSIDERATION FOR PROMOTION TO THE PERMANENT GRADE OF CAPTAIN

CONSEC

-

SSN

DESIG

IN ZONE _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

0083 0084 0095 0086 0087 0088 0089 0090 0091 0092 0093 0094 0095 0096 0097 0098 0099 0100 0101 0102 0103 0104 0105 0106 0107 0108 0109 0110 0111 0112 0013 0114 0115 0116 0117 0118 0119 0120 0121 0122

BELOW ZONE
GWALTNEY PHILLIP EDWIN
REDACTED

4105 4100 4100 4100 4100 4100 4100 4100 4100 4100 4105 4100 4100 4100 4100 4100 4100 4100 4100 4100 4100 4100 4100 4100 4105 4105 4100 4105 4100 4100 4100 4100 4105 4100 4100 4100 4100 4100 4100 4100

DEF A 4114

In Re Navy Chaplaincy 07-mc-269 (RMU) Exhibit 1

Case 1:07-mc-00269-GK Document 44-2 Filed 03/09/09 Page 1 of 1

30 NOV 1995

OFFICERS IN THE COMPETITIVE CATEGORY OF CHAPLAIN CORPS ON THE ACTIVE DUTY LIST OF THE NAVY IN THE GRADE OF COMMANDER ELIGIBLE FOR CONSIDERATION FOR SELECTIVE EARLY RETIREMENT

CONSEC

DESIG

0001 0002 0003 0004 0005 0006 0007 0008 0009 0010 00)1 0012 0013 0014 R E D A C0 0T1E5D 0016 0017 0018 0019 0020 0021 0022 0023 0024

4100 4100 4100 4100 4100 4100 4100 4)00 4100 4100 4300 4100 4105 4100 4100 4100 4100 4100 4100 4100 4100 4100 4100 4100

Enclosure ( I )
DEF A 02727

In Re Navy Chaplaincy 07-mc-269 (RMU) Exhibit 2

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Case 1:07-mc-00269-GK Document 44-3 Filed 03/09/09 Page 3 of 5

Case 1:07-mc-00269-GK Document 44-3 Filed 03/09/09 Page 4 of 5

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Case 1:07-mc-00269-GK Document 44-4 Filed 03/09/09 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

IN RE: NAVY CHAPLAINCY

)

)

)

CHAPLAINCY OF FULL GOSPEL CHURCHES )

)

v.

)

)

THE HONORABLE DONALD C. WINTER, et al. )

)

Case No. 1: 07-mc-269 (RMU) Case N0. 99cv2945 (RMU)

Pursuant to 28 U.S.C. § 1746, I, Arthur A. Schulcz, Sr, declare as follows:

1. My name is Arthur A. Schulcz, Sr. I am the counsel of record for the plaintiff Chaplaincy

of Full Gospel Churches (“CFGC”) in these now consolidated cases. I have personal knowledge

of and am competent to testify to the matters addressed herein.

2. This declaration addresses the authentication of Plaintiff CFGC’s exhibits in this Reply to

defendants’ Opposition to CFGC’s Motion to Amend the Court’s 2000 Decision denying CFGC

standing.

3. Exhibits 1 and 2, as described below, are scanned copies of documents defendants

produced in discovery in Adair & CFGC v . England. In the scanning process for Exhibits 1 and 2, and the Optical Character Reading (“OCR”) conversion to word processing necessary to

convert the document to a pdf file, the words “Redacted” which are not arranged in the original

with the normal lines of text have been changed in location. Some other minor changes in words

occurred and are not susceptible to precise relocation due to incompatibilities between the OCR

process and the word processing system. The Exhibits’ headings, CONSEC numbers, and Bates

Numbers are as shown on the original. The documents have no chaplain names with one

exception. Unscanned copies of the documents will be provided the Court as a courtesy copy.

EXHIBIT 4

Case 1:07-mc-00269-GK Document 44-4 Filed 03/09/09 Page 2 of 3

4. Exhibit 1 is a scanned copy of a copy of part of the FY 2002 Captain Chaplain Promotion

Board Report made to the Secretary of Navy reporting on the Promotion Board results. It is

dated 22 January 2001 and entitled: OFFICERS IN THE COMPETITIVE CATEGORY OF

CHAPLAIN CORPS ON THE ACTIVE-DUTY LIST OF THE NAVY IN THE GRADE OF

COMMANDER ELIGIBLE FOR CONSIDERATION FOR PROMOTION TO THE

PERMANENT GRADE OF CAPTAIN. The originals were produced in discovery and have the

Bates Numbers A 4112 and 4114. It is supposed to list the persons considered by the Board,

above, in and below zone. The Names, with one exception, have ben redacted.

5. Exhibit 2 is a copy of part of the FY 1996 Commander Chaplain Selective Early

Retirement Board Report made to the Secretary of Navy reporting on the Board results. It is

dated 30 November 1995 and entitled: OFFICERS IN THE COMPETITIVE CATEGORY OF

CHAPLAIN CORPS ON THE ACTIVE-DUTY LIST OF THE NAVY IN THE GRADE OF

COMMANDER ELIGIBLE FOR CONSIDERATION FOR SELECTIVE EARLY

RETIREMENT. The original was produced in discovery and has the Bates Numbers A 02727 It

is supposed to list the persons considered by the above Board. The Names have ben redacted

6. Exhibit 3 is a copy of the Declaration of Chaplain (COL) Cecil Richardson, USAF, as

Executive Director of the Armed Forces Chaplains Board in the case of Rigdon v. Perry, 962 F.Supp. 150 (D.D.C. 1997) on behalf of the Department of Defense defendants, including the

Navy. Plaintiff’s counsel obtained it from the

plaintiffs’ counsel.

Rigdon

7. Exhibit 4 is the declaration of Arthur A. Schulcz, Sr.

This testimony is true to the best of my knowledge and ability, it is made under penalty of

perjury and reflects the testimony I would give if called to testify in a court of law.

2

EXHIBIT 4

Case 1:07-mc-00269-GK Document 44-4 Filed 03/09/09 Page 3 of 3

March 9, 2009

/S/ Arthur A. Schulcz, Sr. Counsel for Plaintiff CFGC

3

EXHIBIT 4

 
 Case 1:07-mc-00269-GK Document 95 Filed 07/22/11 Page 1 of 52

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: NAVY CHAPLAINCY

)

)

1: 07-mc-269 (RMU)

)

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION ENJOINING DEFENDANTS’ USE OF THE CHIEF OR DEPUTY CHIEF OF CHAPLAINS AND CHAPLAINS AS CHAPLAIN SELECTION BOARD MEMBERS IN DECISIONS
AWARDING GOVERNMENT BENEFITS TO DENOMINATIONAL REPRESENTATIVES WITHOUT EFFECTIVE PROCEDURAL GUARANTEES
PRECLUDING DENOMINATIONAL FAVORITISM OR BIAS

The Plaintiffs, 65 Navy chaplains and two chaplain endorsing agencies on behalf of their

Navy chaplains and chaplain candidates, move the Court for a preliminary injunction enjoining

the Navy from (1) using the Navy Chief of Chaplains or his Deputy in decisions awarding

government benefits to denominational representatives, including their assignment as president

of Navy Chaplain selection boards and (2) using chaplains as board members awarding such

benefits to denominational representatives until such time as either (a) the Court rules on the

pending partial summary judgment motions or (b) the Navy provides effective procedural

guarantees precluding denomination favoritism and prejudice in the award of government

benefits to chaplains or chaplain candidates.

The accompanying memorandum of points and authorities shows Plaintiffs meet the

criteria for such an injunction. Plaintiffs, as the moving party, show (1) they have a substantial

likelihood of success on the merits of their Establishment Clause claims; (2) they will suffer

irreparable injury if the injunction is not granted; (3) an injunction would not substantially injure

the Navy or other interested parties; and (4) the public interest would be furthered by the

injunction.

In accord with Local Civil Rule 7(m), counsel for the Parties discussed this motion and

1

Case 1:07-mc-00269-GK Document 95 Filed 07/22/11 Page 2 of 52

Defendants’ counsel stated they will oppose this motion. The Parties have accordingly conferred

and Plaintiffs will file contemporaneous with this Motion an Unopposed Motion for an Order

establishing a briefing schedule for this Preliminary Injunction Motion.

Respectfully submitted,

Dated: July 22, 2011
Of Counsel: Douglas McKusick, Esq. THE RUTHERFORD INSTITUTE P.O. Box 7482 Charlottesville, VA 22906-7482

/S/ Arthur A. Schulcz, Sr. ARTHUR A. SCHULCZ, Sr. D.C. Bar No. 453402 Counsel for CFGC and the Adair Plaintiffs 2521 Drexel Street Vienna, VA 22180 703-645-4010

2

Case 1:07-mc-00269-GK Document 95 Filed 07/22/11 Page 3 of 52

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: NAVY CHAPLAINCY

)

)

Case No. 1: 07-mc-269 (RMU)

)

)

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF A PRELIMINARY INJUNCTION ENJOINING DEFENDANTS’ USE OF THE CHIEF OR
DEPUTY CHIEF OF CHAPLAINS AND CHAPLAINS AS CHAPLAIN SELECTION BOARD MEMBERS IN DECISIONS AWARDING GOVERNMENT BENEFITS TO DENOMINATIONAL REPRESENTATIVES WITHOUT EFFECTIVE PROCEDURAL
GUARANTEES PRECLUDING DENOMINATIONAL FAVORITISM OR BIAS

Dated: July 22, 2011
Of Counsel: Douglas McKusick, Esq. THE RUTHERFORD INSTITUTE P.O. Box 7482 Charlottesville, VA 22906-7482

Respectfully submitted,
/S/ Arthur A. Schulcz, Sr. ARTHUR A. SCHULCZ, Sr. D.C. Bar No. 453402 Counsel for CFGC and the Adair Plaintiffs 2521 Drexel Street Vienna, VA 22180 703-645-4010

Case 1:07-mc-00269-GK Document 95 Filed 07/22/11 Page 4 of 52
INDEX INDEX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv GLOSARY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 THE PLAINTIFFS H AVE STANDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 PROCEDURAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 THE FACTUAL BACKGROUND SUPPORTING THIS MOTION. . . . . . . . . . . . . . . . . . . . . . . 3 STANDARDS OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A. Standard for an Injunction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 B. Standard of Review for Establishment Clause Challenges. . . . . . . . . . . . . . . . . . 15 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 I. CHAPLAINS ARE UNIQUE NAVAL OFFICERS WHO ARE COMMISSIONED DENOMINATIONAL REPRESENTATIVES ON LOAN FROM THEIR FAITH COMMUNITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 A. Chaplains Are Denominational Representatives on Loan from Their Faith
Community. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 B. Navy Regulations, the Military Code of Conduct and the Geneva Convention
Recognize Chaplains’ Religious Nature Makes Them Unique Officers. . . . . . . . 20 C. Chaplains Act as Denominational Representatives When Awarding Benefits to
Denominational Representatives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
II. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR CLAIM THE CHALLENGED PRACTICES VIOLATE THE ESTABLISHMENT CLAUSE. . . . . . . 21 A. The Navy’s Award of Government Benefits to Clergy and Commissioned Denominational Representatives is not Denominationally Neutral. . . . . . . . . . . . 22
i

Case 1:07-mc-00269-GK Document 95 Filed 07/22/11 Page 5 of 52
1. The Chief of Chaplains’ role and influence as a decision maker in the award of Navy benefits introduces religion into the decision and results in denominational favoritism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2. The denomination of the Chief of Chaplains benefits during his tenure as Chief and afterward in every personnel management area that awards benefits to chaplains.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. The Navy’s Chaplain Selection Board Secret Voting Procedures Violate the Establishment Clause’s Mandate that the Distribution of Government Benefits To Denominational Representatives Must Be Religiously Neutral . . . . . . . . . . . . . . 26
C. The Denomination of Chaplain Selection Board Members Improperly Influences the Board results. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
D. The Challenged Practices Fail Strict Scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 1. Using the Chief or Deputy as a chaplain selection board president is not narrowly tailored to achieve a compelling government purpose. . . . . . . . 28 2. Using chaplains as chaplain selection board members results is not narrowly tailored to achieve a compelling government purpose. . . . . . . . 28
E. The Challenged Practices Violate the Lemon Test. . . . . . . . . . . . . . . . . . . . . . . . 28 1. The challenged practices fail Lemon’s second prong by creating denominational preferences and prejudice.. . . . . . . . . . . . . . . . . . . . . . . . 31 2. The challenged programs entangle the government with religion. . . . . . . 31
D. The Challenged Programs Fail the Reasonable Observer Test. . . . . . . . . . . . . . . 33 1. The reasonable observer examines the challenged programs history and purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 2. The reasonable observer would conclude the challenged programs result in illegal preferences that advance denominational interests. . . . . . . . . . . . . 34
III. PLAINTIFFS WILL SUCCEED ON THEIR CLAIM THE CHALLENGED PRACTICES VIOLATE DUE PROCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
IV. THE CHALLENGED PROGRAMS CAUSE IRREPARABLE HARM. . . . . . . . . . . . . 36
ii

Case 1:07-mc-00269-GK Document 95 Filed 07/22/11 Page 6 of 52 V. PLAINTIFFS MEET THE OTHER INJUNCTION CRITERIA.. . . . . . . . . . . . . . . . . . . 37
A. Terminating Defendants’ Unconstitutional Practices Pose No Burden or Injury on Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
B. There Are No Third Party Rights That must Be Addressed. . . . . . . . . . . . . . . . . 38 C. Terminating Defendants’ Unconstitutional Practice Is in the Public Interest. . . . 38 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 LIST OF EXHIBITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
iii

Case 1:07-mc-00269-GK Document 95 Filed 07/22/11 Page 7 of 52
TABLE OF AUTHORITIES FEDERAL CASES: Accardi v. Shaughnessy, 347 U.S. 260 (1954).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Adair v. England (Adair I), 183 F.Supp.2d 31 (D.D.C. 2002).. . . . . . . . . . . . . . . . . . 16, 18, 30, 31 Adair v. England (Adair II), 217 F.Supp.2d 7 (D.D.C. 2002). . . . . . . . . . . . . . . . . . . . . . . . . 16, 22 Anderson v. Laird, 466 F.2d 283. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30 Bonham v. D.C. Library Admin., 989 F.2d 1242 (D.C. Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . 15 Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290
(D.C.Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 15, 35, 36, 37, 40, 41 Committee for Public Education v. Nyquist, 413 U.S. 756 (1973). . . . . . . . . . . . . . . . . . . . . . . . 15 Connection Distributing Co. v. Reno, 154 F.3d 281 (6th Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . 38 Cooney v. Dalton, 877 F. Supp. 508 (D.Hawai’i 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Corporation of Presiding Bishop v. Amos, 485 U.S. 327 (1987). . . . . . . . . . . . . . . . . . . . . . . . . 33 County of Allegheny v. ACLU, 492 U.S. 573 (1979). . . . . . . . . . . . . . . . . . . . 16, 22, 25, 28, 31-33 Dilley v. Alexander, 603 F.2d 919 (D.C. Cir. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38, 40 Elrod v. Jones, 427 U.S. 347 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Engel v. Vitale, 370 U.S. 421 (1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 39 Everson v. Board of Ed., 330 U.S. 1 (1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Gillette v. United States, 401 U.S. 437 (1971).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Hernandez v. C.I.R, 490 U.S. 680 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 In re England, 375 F.3d 1169, 1171 (D.C. Cir. 2004), cert denied, 543 U.S. 1152 (2005). . . . . 19 Kiryas Joel v. Grumet, 512 U.S. 687 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 26, 31 Lac Vieux Desert Band of Lake Superior Chippewa v. Michigan Gaming Control Board, 276
F.3d 876 (7th Cir.), cert denied, 536 U.S. 923 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
iv

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Larkin v. Grendel’s Den Inc., 459 U.S. 116 (1982).. . . . . . . . . . . . . . . . . . . . 22, 27, 31-33, 36, 39 Larson v. Valente, 456 U.S. 228 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 29 Lemon v. Kurtzman, 403 U.S. 602 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 McCreary County v. ACLU of Ky., 545 U.S. 844 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 34 McGowan v. Maryland, 366 U.S. 420 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Miller v. City of Cincinnati, 622 F.3d 524 (6th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Rigdon v. Perry, 962 F.Supp. 150 (D.D.C. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 40, 43 Schlesinger v. Ballard, 419 U.S. 498 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Sherbert v. Verner, 374 U.S. 398 (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Thomas v. Review Board, 450 U.S. 707 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Torcaso v. Watkins, 367 U.S. 488 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 United Christian Scientists v. First Church of Christ Scientist, 829 F.2d 1152
(D.C. Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Utah Licenced Bev. Ass’n v. Leavitt, 256 F.3d 1061 (10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . 40 Wallace v. Jaffree, 472 U.S. 38 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 35 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).. . . . . . . . . . . . . . . . . 36 Wilkinson v. Legal Services Corp., 27 F. Supp. 2d 32 (D.D.C. 1998).. . . . . . . . . . . . . . . . . . . . . 40
FEDERAL STATUTES 10 U.S.C. § 643. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
v

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Abbreviation DOD DODD DOD I DODIG IG NIG NR OPNAVISNT SECNAVINST

GLOSSARY AND ABBREVIATIONS Term or Description Department of Defense DOD Directive DOD Instruction DOD Inspector General Inspector General Naval Inspector General Naval Regulation(s) Operational Navy Instruction Secretary of the Navy Instruction

RANKS CAPT CDR LCDR LT LTJG RADM

Captain Commander Lieutenant Commander Lieutenant Lieutenant Junior Grade Rear Admiral

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INTRODUCTION Plaintiffs seek an Order enjoining three specific Navy chaplain selection board practices: (1) the use of the Chief of Chaplains (the “Chief”) or his Deputy as chaplain selection board president; (2) the use of secret votes thereon with no accountability; and (3) placing chaplains on chaplain selection boards without effective guarantees the power to distribute government benefits will be used solely for secular, neutral and non-ideological purposes. The term “selection board” refers to chaplain selection boards unless specified otherwise. This is a simple case about Navy denominational favoritism and prejudice in the award of government benefits. It is now in the twelfth year despite the simplicity of its major theme and question: does the Establishment Clause forbid the Navy from preferring some denominations over others when awarding government benefits? The word “chaplain” is a short, historical term for a denominational representative commissioned to provide religious ministry to those military members of the chaplain’s faith community, others of like faith, and to facilitate the exercise of religion for all. See I.A. infra. To emphasize the inherent religious nature of chaplains, Plaintiffs will sometimes refer to them in this brief as “denominational representatives”, what they are hired and appointed to be. Id. Simple numerical analysis of the results of government benefit decisions shows the involvement of the Chief and chaplains in the challenged procedures suggests denominational preferences for those seeking chaplain appointments, and actual denominational preferences in awarding government benefits to commissioned denominational representatives, see above. The challenged practices also include procedures that unconstitutionally delegate discretionary civic power to denominational representatives to award benefits to persons defined by their religious identity. The challenged procedures allow the delegated power to be used for non-neutral, non-
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secular and ideological purposes, in violation of the Establishment Clause. The challenged practices and procedures cause irreparable harm and fail strict scrutiny.
Plaintiffs bring this Motion to force the Navy to stop violating the Establishment Clause through its challenged procedures until the Court can evaluate on their merits the partial summary judgment (PSJ) motions pending before this Court. It is necessitated by the Navy’s bad faith and delay to the timely resolution of the important constitutional questions and violations which constitute irreparable harm according to the law of the case and Circuit. This Motion addresses some of the issues pending before the Court, e.g., Plaintiffs’ PSJs on the Navy’s chaplain promotion and accession systems identified below, because they involve the use of the Chief in the benefit awarding decisions, the practices overlap, and they facilitate the Navy’s continued violation of the Establishment Clause’s neutrality mandate.
It is time the Navy is forced to obey the Constitution it is supposed to defend. For11 years the Navy has denied the denominational preferences clearly shown by its own consultant, studies, reports, and Plaintiffs’ evidence, all of which show the Navy denominational bias.
THE PLAINTIFFS H AVE STANDING Plaintiffs include active duty and active duty Reserve chaplains and two endorsing agencies with active duty Navy chaplains and chaplain candidates who will be reviewed by the selection board procedures they challenge and which subject them to official denominational prejudice. This is irreparable injury as a matter of law. Chaplaincy of Full Gospel Churches v. England (“CFGC”), 454 F.3d 290, 302-04 (D.C. Cir. 2006). The plaintiff endorsing agencies seek prospective relief for their Navy chaplain members and chaplain candidates in their representative capacities.
PROCEDURAL BACKGROUND
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Plaintiffs’ PSJ attacking the Navy’s promotion system with its secret board procedures without accountability (the “Prom. PSJ”) is currently pending before the Court, Doc. No. 34 (filed 12/30/08). Those board procedures allow one board member to manipulate the board, a fact established by the Naval Inspector General’s (“NIG”) own investigations. See id. at 37-44.
Plaintiffs’ PSJ attacking the Navy’s arbitrary accession system, aka “the Thirds Policy” (the “TP-PSJ”), Doc. No. 55 (8/18/09), challenges the Navy’s chaplain accession system which has established denominational favorites, no constitutional criteria, and allows the use of arbitrary denomination accession goals unrelated to the Navy’s free exercise needs. Because the Chief’s denomination has a significant effect on accessions, that policy is also challenged here.
Plaintiffs recently filed a Partial Summary Judgment Motion addressing the impact of the Chief on decisions awarding benefits to denominational representatives, Doc. No. 90. The Navy has moved to strike this motion, Doc. No. 91. The Navy filed its Motion after Plaintiffs stated they would not seek an injunction in the midst of the just completed promotion cycle, after the statistical data showing the impact of the Chief was developing in another case, but would give the Court an opportunity to resolve the issue before the next promotion cycle began. The Navy’s Motion to Strike further delays resolution of this issue and continues the Establishment Clause violations readily apparent through simply counting promotions by denomination and comparing promotion rates between those denominations which have had a Chief compared and those who have not. These PSJ’s and their undisputed material facts are incorporated by reference.
THE FACTUAL BACKGROUND SUPPORTING THIS MOTION 1. The fundamental issue of this case from its beginning to the present is Plaintiffs’ claim the Navy Chaplain Corps (the “CHC”) uses policies, practices, and procedures that facilitate and allow denominational or faith group favoritism and its corresponding prejudice against the non-
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favored faith groups Plaintiffs represent. All three initial Complaints allege the Navy has favored Catholics and Liturgical Protestant faith group clusters (“FGCs”) (see glossary). The 2008 amendments thereto specifically allege the Navy has engaged in denominational favoritism and prejudice and cite as examples the denominational hierarchy identified in No. 11 below. 2. The NIG and the DOD Inspector General (DODIG) have investigated and found misconduct on four chaplain promotion boards, Prom. PSJ Facts (“Prom. Facts”) (incorporated by reference), [Docket No. 34-2], 117-125. The DODIG investigated the CHC Commander (“CDR”) boards for fiscal years (“FY”) 97 and 98 and found evidence that denomination influenced both board selections, id. at 124; the NIG investigation of (a) the FY 00 CHC Captain (“CAPT”) selection found the female board member’s religious prejudice denied then CDR Mary Washburn promotion to CAPT (the ‘Washburn NIG”), id. at 121-122; and (b) the FY 08 CAPT Board (the “Baker NIG”, incorp. by ref.) found Deputy Chief, RADM Baker’s negative inference was sufficient to result in a candidate’s failure of selection. TP-PSJ Ex. 52, ¶¶ 26, 50-53. 3. Chaplain promotion board members “‘vote the record’ by depressing one of five buttons in a ‘sleeve’ which hides the voter’s hand, ensuring the secrecy of the vote. The buttons coincide with degrees of confidence the voter has in the record considered, ranging from 0 to 100 in 25 degree increments.” Id. at 123 (citing DODIG Report, p. 8 (Extracts at Prom. Exhibit 29)). 4. RADM Black, then Deputy Chief of Chaplains, explained to the Washburn NIG the CHC practice of “zeroing out” a candidate (Prom. PSJ Exhibit 26), how a single member voting zero ensures a candidate will not be selected because of the small number of board members who vote in secret with no accountability. Prom. PSJ Material Fact (incorporated by reference) 123. 5. Statistical analysis now shows that in every CHC personnel management category that can be measured by data, the Navy has a preference for Catholics first, Liturgical Protestants
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second, with Non-liturgical or Special Worship FGCs alternating third and fourth. Prom. PSJ at

22-23 (citing Dr. Leuba’s Allonge Declaration at 2, ¶ 6; Compendium at 2-4, ¶¶ 3-10, and App.

K at 11, Table K) (incorporated by reference). See also 6 and 11 below.

6. Detailed analysis of the CHC’s management practices shows the FGC system hides the

Navy’s denominational preferences and prejudice, the issue at hand. The CHC treats different

faith groups within its faith group cluster system in vastly different ways. Theologically more

conservative denominations have been treated prejudicially when compared with those of more

liberal beliefs within the FGCs. For example, Baptists, which the Navy categorizes as non-

liturgical, have been treated differently than non-Baptist non-liturgicals, masking the Navy’s

prejudice against Non-liturgicals; the liberal Presbyterian Church USA (“PUSA”) is treated as a

favorite while the conservative Liturgical Protestant Presbyterian Church of America (“PCA”) is

treated prejudicially along with Plaintiffs faith groups as shown by the accession statistics below.

Denomination

Roman Catholic RC

Other Catholic

Presbyterian PUSA L

Presbyterian PCA L

Lutheran LMS

L

Lutheran ELCA L

Methodist

L

Church of Christ NL

Southern Baptist NL

Natl Baptist Conv NL

AGC

NL

CFGC

NL

Jewish

SW

Mormon

SW

SDA

SW

Applications from 1985 to 2000

Number % Recommended

391

93.35%

2

0.0%

81

86.42%

27

74.07%

84

83.33%

87

83.91%

124

80.65%

21

71.43%

185

66.49%

43

72.09%

9

66.67%

44

59.09%

31

83.87%

21

66.67%

28

67.86%

Applications after 2000

Number % Recommended

59

94.92%

2

0.0%

9

77.78%

5

100.00%

13

92.31%

12

91.67%

33

69.70%

2

50.00%

88

80.68%

12

83.33%

9

66.67%

11

72.73%

18

86.89%

1

100.00%

17

94.12%

Harald R. Leuba, Ph.D., 12/24/08 Expert Declaration,“Features (policies and practices) of the

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Case 1:07-mc-00269-GK Document 95 Filed 07/22/11 Page 15 of 52

Chaplain Corps’ personnel system” (Exhibit 1) at 9, ¶ 36, Table 2.1 (Plaintiffs AGC and
CFGC in bold and shaded). See Prom. PSJ Fact 49. 7. The Navy’s own consultant, the Center for Naval Analysis (the “CNA”), examined the Navy’s promotion system immediately prior to the chaplains’ litigation and found clear evidence the CHC’s promotion system produced statistically significant benefits to Catholics. It presented that data to the Navy senior leadership at the 2000 CHC Senior Leadership Conference (SLC); Plaintiffs’ Supplemental Evidence Exhibit 2, Docs. No. 83, 84, incorporated by reference. 8. CNA’s SLC 2000 briefing chart, Ex. 2, shows the following promotion rates and data:

Faith group Cluster Liturgical Non-liturgical Roman Catholic Special Worship

LCDR Promotion % CDR Promotion %

78.5% (326)

72.0% (382)

79.5% (327)

69.2% (364)

82.0% (183)

83.7% (264)

88.6% (44)

70.0% (40)

CAPT Promotion % 59.1% ( 298 ) 53.3% (242) 57.8% (232) 52.0% (25)

9. CNA’s SLC 2000 promotion data briefing chart itself validates the Plaintiffs’ Expert’s finding that Catholics and liturgicals were the preferred denominations and, when the CNA’s promotion statistics are compared by FGCs, the differences are statistically significant. Harald R. Leuba, PhD., Old Warnings, New Data (“Warnings”) (Exhibit 3), ¶ 16; see also ¶¶ 8, 11. 10. Analysis of the denominational frequency of promotion board and other selection board memberships from FY 1977 to 2002 establishes a distinct hierarchy of CHC favorites, easily organized into four tiers. See 11 below; Prom. PSJ at 28-30. 11. Five denominations were awarded 80% of all promotion board memberships between 1977 and 2002. The hierarchy falls into four tiers with only Catholics in Tier 1 (100% participation on all boards), and primarily Liturgical Protestant denominations comprising Tier 2

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(double digit percentage representation on all boards), but including Southern Baptists, who

despite their favorite status, still are not treated as favorably as liturgicals. With the exception of

Southern Baptists, Plaintiffs’ faith groups fall into Tier 4 (0 to 5% participation on boards).

1977 thru 2002 Denominational Appearance as Promotion Board Members ( )= total number of appearances

Faith

Roman

Group

Catholic

Cluster 6

Liturgical Protestant

Non-Liturgical Special

Protestant

Worship

% Selected to CDR*

Tier I 100%

RC (102)

48.34 %

Tier II 25 to40%

PUSA (43) ELCA (29) UM (21) LMS (15) ABC (12) UCC (10) CC/DC (10)

SB (37)

SDA (11) 45.07 %

Tier III 7 to15% 4 to 8 seats in 25 years

AME (8) RCA (7) EPIS (7)

NBCUS (7)

J (6)

PNBC (7)

36.12 %

Tier IV 0 - 5% 0 to 3 seats in 25 years

5 Other [Catholic type] (0)

CRC (3) ECCA (3) CME (2) 53 Others (0-2)

BGC (5) GARB (4) CGIC (3) 109 Others (0-2)

LDS (4) ORTH (3) CS (1) 10 Others (0)

27.00 %

Id. and Prom. PSJ Fact 82 (incorporated by reference). 12. Each tier has a statistically significant selection rate (the difference is not by chance) for the award of benefits when compared with the other tiers. The favored denominations receive higher selection rates resulting in receiving more benefits than the less favored denominations. 13. This also shows the opportunity for promotion among chaplain denominations is not equal because denomination influences who receives Navy benefits. Prom. Facts 50-58, 62, 64, 69-72, 82-93.

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14. Dr. Harald Leuba recently (1/11/11) examined the influence and effect of the Chief in the

award of government benefits, including promotions and the appointment of chaplains,

Statistical Evidence of the Navy’s Religious Preferences (“Preferences”), Exhibit 4. The

evidence from that analysis in terms of promotions and actual accessions shows the Chiefs’

denominations receive significant benefits during and after the Chief’s tenure in both categories.

See Figure 3 on page 32 (promotions) and Fig. 6 on p. 21 (accessions). This applies across the

board regardless of the denomination. In promotions:

Rank
CDR CDR Capt Capt

What Happens when the Chief of Chaplains and a Candidates for Promotion Share a Denomination –
or Do Not have a Common Faith?

Match conditions

Number of Considers

Number of Selections

Match

48

40

No Match

287

210

Match

28

22

No Match

444

224

% Selected
83.33 73.17 78.57 50.45

Id. at 35, Table 9.
15. Dr. Leuba found:
2.20.5. There were 48 occasions when some candidate being considered for promotion to CDR happened to be the same denomination as the Chief of Chaplains; 40 of these candidates were selected for promotion. Some of them were surely well qualified and deserved to be recommended for promotion, i.e., submitted to the Chief of Chaplains for his subsequent approval. But the fact is that this success rate, 83.3%, is statistically significantly higher (by 2 standard deviations using a simple binomial test) than the 73.3% success rate which was experienced by the candidates who differed from the Chief of Chaplains on that occasion.

2.20.5.1 Similarly, there were 28 occasions when some candidate being considered for promotion to Captain happened to be the same denomination as the Chief of Chaplains; 22 of these candidates were selected for promotion. Their success rate, 78.6%, is statistically significantly higher (by 3 standard deviations

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using a simple binomial test) than the 50.0% success rate which was experienced by the candidates who differed from the Chief of Chaplains on that occasion. Id. All three current Navy CHC flag officers are endorsed by PUSA. 16. Analysis of the CHC’s rank structure shows the Chiefs’ influence on the CHC. Their denominations typically start out at the lieutenant level below their representative share of the CHC1 but thereafter increase their percentage at each of the career grades. The Non-liturgicals, who generally start at LTJG and LT above their fair share, thereafter decrease at every rank.

Table 6.*

% of the Chaplain Corps when at LT

% of those “Considered”
for LCDR

Relative % Gain (Change in
“Market Share”)

Roman Catholic

15.43

19.76

[ 26.5

Liturgical

28.40

36.38

[ 28.1

Non Liturgical

48.77

43.86

\ 10.0

* All the data in this Table, and the following series of numbered Tables, come from Navy Exhibits (mostly Smith, et al. 2000) and none of it has been corrected for: (1) Faith Group confounding,
(2) Above Zone promotions, or (3) Favorable Period of Time sampling. Each of those errors distorts the data toward the Navy’s “there are no substantial differences” posture - and even so, the pattern of bias and preference is still evident - at p<.01, or three standard deviations.

Table 7.

% of the Chaplain Corps when at CDR

Roman Catholic

20.77

Liturgical

34.62

Non Liturgical

44.62

% of those Considered for CAPT
28.30
33.65
38.05

Relative % Gain (Change in
“Market Share”)
[ 36.3
\ 2.8
\ 14.7

Id. at 29, Tables 6 & 7.

1 The term “representative” or “fair’” share refers to the approximate percentage of the population available to serve. See Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650 (1989) (quoting Hazelwood School Dist. v. U.S., 433 U.S. 299, 308 (1977)) (“The ‘proper comparison is between the [clergy] composition of the at-issue jobs and the [clergy] composition of the qualified ... population in the relevant labor market.’” ).
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17. The exception to the pattern of preference for denominations who have had a Chief is the Navy’s treatment of Southern Baptists. Their only Chief, RADM Kelly (1965-70), served in the Vietnam War era when the Navy needed lots of Non-liturgical evangelical chaplains. Southern Baptists have benefitted but not at the same rate or with the same magnitude as the Liturgical Chiefs. Harald R. Leuba, PhD., Reasons Change, Seasons Change (Exhibit 5), ¶ 60.4. 18. The Chiefs’ denominations receive a statistically significant legacy benefit.
a. Analysis of CHC Alfa Rosters from 2000 through 2010 show the Chiefs’ denominations, except for Southern Baptists, benefit from their influence with a measurable legacy effect evident in the liturgical denominations’ consistent over-representation at the ranks of LCDR, CDR and CAPT when compared to their fair share of the clergy available to serve. Three denominational groups have had Chiefs: Catholic, So. Baptist, and all other denominations that have had a Chief. The fourth group in the charts below for FY 2000, 2004, 2008 and 2010 is those “Denominations that ... have never been Chief of Chaplains.” All the plots produce similar results demonstrating continuing and systematic bias. Id. ¶¶ 60-60.7.
b. If the denominational distribution by rank were denominationally neutral, the lines for each group would be parallel to the abscissa and clustered about 1.0 on the ordinate. Id. Instead, in each time period, Catholic chaplains begin their careers below their fair share at the rank of LTJG - LT, but then increase their percentage of the Corps at every rank vis a vis their fair share. The slope for Catholics is always steepest and highest. Catholics are followed by the denominations other than So. Baptist who have been Chief who also increase percentage of the Corps at every rank. So. Baptist do consistently worse than Catholics and other denominations who have been Chief, while those who have never had a Chief are always at the bottom of in every period. Id. This is not the characteristic of a denominationally neutral system.
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Case 1:07-mc-00269-GK Document 95 Filed 07/22/11 Page 21 of 52
“These results are statistically significant beyond 3 standard deviations.” Id. ¶ 60.7.
19. Analysis of the 2008 Alf Roster shows the CHC reflects the Thirds Policy distribution at
the CAPT rank despite 11 years of litigation, Preferences at 40, ¶¶ 2.23.3-2.23.4 and Fig.1.
2.23.3 March 2008, at the lowest ranks, each Faith Group’s presence is on a rough par with its share in the Population Available to Serve.
•As rank increases, Non-Liturgicals lose share at every rank. By the time the survivors arrive at the leadership ranks they are only a third of the total.
•Liturgicals gain share overall, and end up at the infamous “third”, with Non- Liturgicals who out-number them 2:1 in the Population Available to Serve.
•Roman Catholics gain share at every rank and end up (including the Special Worship Group in their “third”) at the arbitrary, and now 26 year old, “best needs of the Naval service”, 30%. (cf text block p 9 above.)
2.23.4. This is not “the product of a denominationally neutral promotion system.”
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Case 1:07-mc-00269-GK Document 95 Filed 07/22/11 Page 22 of 52 20. The Navy’s prejudice against Plaintiffs, manifest at accessions, see No. 6 above, is also manifest in promotion results as shown in the Preferences Fig. 2 at 41, ¶ 2.23.5, chart below.
The linear correlation here is .74 for the Tier III denominations and .80 for all the data. This has a t score of 5.6 standard deviations; p<.0001.
“The fact that the denominations distribute along the percentage scales demonstrates differences in treatment”, id., ¶ 2.23.6, and the fact that the denominations distribute in the same ordinal
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sequence along both scales, demonstrates the existence of an underlying stable pattern of
denominational preference”, ¶ 2.23.7 (emphasis in original).
21. Dr. Leuba examined the financial impact of the Navy’s religious preferences as reveled in
the February 2010 CHC Alpha Roster, Preferences, ¶¶ 25.1-25.8.3, sorted it “by MMC (Major
Manpower Claimant [the Navy’s major commands that make claims upon its resources, e.g., the
Atlantic and Pacific Fleets]) and then [] calculated the average rank, by denomination, for all the
chaplains, in each type of duty, id. at ¶ 2.25.3 “The data demonstrate, and Figure 4 shows, that
Roman Catholics are the best paid religion/denomination, by a wide margin, in six of the seven
categories of job assignment, and that the Non-Baptist, Non-Liturgicals are the worst paid in every
category.” Id. at ¶ 2.25.6. “Baptists, Non-Baptists and Special Worship Chaplains are all paid
less for the same work than are either Liturgicals or Roman Catholics.” Id .at ¶ 2.25.7. These
differences are statistically significant “well beyond two standard deviations.” ¶¶ 2.25.8.
Figure 4
2.25.8.2 The fact that the NonBaptist denominational group is at the bottom of the chart for every kind of duty station is powerful evidence of the relative advantage in pay that the Roman Catholics and the Liturgicals receive when working side-by-side with their Non-Baptist brethren.
2.25.8.3 If there were no denominational preference in the Navy Chaplain Corps, no statistical relationship here, then all the lines in this figure would be random scatters on the chart, oscillating and intertwined about the average. [See also Seidel, Marc-David L. (2006) “Friends in High Places: The Effects of Social Networks on Discrimination in Salary
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Negotiations” Administrative Science Quarterly, available (10/18/06) at http://www.findarticles. com/p/articles/ml_m4035/ls_2-45/ai_64705571/print.] 22. Chaplains dominate Navy chaplain accession and recall eligibility (“CARE”) boards, rely on subjective criteria to evaluate chaplain candidates, have no “established rating scheme or objective criteria by which they determine the ‘best qualified’ candidate for any accessioning program or active duty”, TP-PSJ Facts 55, 58.g. The results demonstrate a pattern and practice of denominational preferences and prejudices, id. Nos. 58.h, 69, 79, 99; Facts 6, 19, 20 supra.
STANDARDS OF REVIEW A. Standard for an Injunction To warrant preliminary injunctive relief, the moving party must show (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction. E.g., Mova Pharm. Corp., 140 F.3d 1060, 1066 (D.C. Cir. 1998) (quoting City Fed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)) (internal quotation marks omitted). CFGC, 454 F.3d at 297. Plaintiffs meet this criteria. B. Standard of Review for Establishment Clause Challenges The standard for reviewing Establishment Clause claims is well established: courts must carefully examine any practice “challenged on establishment grounds with a view to ascertaining whether it furthers any of the evils against which that Clause protects.” Committee for Public Education v. Nyquist, 413 U.S. 756, 794 (1973). Searching review is required because “the Establishment Clause forbids subtle departures from neutrality, ‘religious gerrymanders,’ as well as obvious abuses.” Gillette v. U.S., 401 U.S. 437, 452 (1971) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 696 (1970) (Harlan, J., concurring)). There is no “de minimus” exception to traditional Establishment Clause analysis; Bonham v. D.C. Library Admin., 989 F.2d 1242, 1245 (D.C. Cir. 1993).
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Hernandez v. C.I.R, 490 U.S. 680, 695 (1989) provides specific guidance for judicial review of all Establishment Clause claims.
Our decision in Larson v. Valente, 456 U.S. 228 (1982), supplies the analytic framework for evaluating petitioners' [Establishment Clause] contentions. Larson teaches that, when it is claimed that a denominational preference exists, the initial inquiry is whether the [practice] 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). A practice evidencing a denominational preference is subject to strict scrutiny. County of Allegheny v. ACLU, 492 U.S. 573, 608-09 (1979) (“we have expressly required ‘strict scrutiny’ of practices suggesting ‘a denominational preference’”) (quoting Larson, 456 U.S. at 246). The Court has embraced the County of Allegheny standard in the law of the case: “if the plaintiffs can demonstrate after discovery that some or all of the Navy's policies and practices suggest a denominational preference, then the court will apply strict scrutiny to those policies and practices for which the plaintiffs have met this initial burden.” Adair v. England (Adair II), 217 F.Supp.2d 7, 14-15 (D.D.C. 2002) (citing County of Allegheny, op. cit.); see also Adair v. England (Adair I), 183 F.Supp.2d 31, 55 (D.D.C. 2002) ( “the relaxed strict-scrutiny standard for some cases involving the military does not apply in this case, and the court will apply the usual strictscrutiny standard.”).
SUMMARY OF ARGUMENT Plaintiffs meet all the criteria for an injunction. First, plaintiffs will succeed on their Establishment and Due Process Clause violation claims because the clearest command of the Establishment Clause, that the government may not prefer one denomination over another, is the law of this case: if the Plaintiffs can provide evidence that the Navy’s challenged practices suggest denominational preferences, the Court will apply strict scrutiny to those practices.
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The evidence suggests, if not establishes, the challenged practices result in clear denominational preferences in the award of government benefits, advancing some denominations and inhibiting others to the detriment of Plaintiffs; the Chiefs’ denominations are especially benefitted. The challenged procedures allow denomination to become relevant to a chaplain’s standing in the Navy and chaplain communities. The challenged practices are not narrowly tailored to achieve a compelling purpose; they fail all Establishment Clause tests and result in unequal treatment for all chaplains.
Second, Plaintiffs’ evidence supporting their allegations of an Establishment Clause violation shows they have suffered irreparable harm.
Finally, an injunction will not injure the Navy or other interested parties. The Navy can show no harm by having to follow the Constitution, and in fact, it is in the highest public interest to have the Armed Forces strictly adhere to the Constitution’s requirements and mandates.
ARGUMENT This case involves two distinct Establishment Clause principles. First, the Establishment Clause’s clearest command forbids denominational preferences of any kind, Larson, 456 U.S. at 244. Second, the Constitution forbids the delegation of discretionary civic power to persons defined by their religious identities to award government benefits to other denominational representatives. Kiryas Joel v. Grumet, 512 U.S. 687, 698-99 (1994), explains that principle. The challenged practices illustrate that granting denominational representatives unchecked power to award benefits to persons defined by their religious identity results in denominational preferences for some and prejudice others. The basic question underlying this motion is: may the Navy delegate discretionary civic power to persons defined by their religious identity without effective guarantees the power will by
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used in a religiously neutral manner? Grumet answers this question with a resounding “No!” The issue of denominational preferences also raises Fifth Amendment considerations because promotions in the career grades of Lieutenant Commander, Commander and Captain are limited by law and there are more applicants than openings. See Schlesinger v. Ballard, 419 U.S. 498, 502-03 (1975) (explaining the Navy’s up or out promotion system). Religious favoritism results in advancement of certain denominations and prejudices others because there are only a limited number of benefits available, e.g., promotions and chaplain appointments. I. CHAPLAINS ARE UNIQUE NAVAL OFFICERS WHO ARE COMMISSIONED
DENOMINATIONAL REPRESENTATIVES ON LOAN FROM THEIR FAITH COMMUNITIES The religious nature of chaplains is at the heart of the issues before the Court. Defendants in the past have deceitfully argued that chaplains are solely naval officers and their religious identification has no bearing on constitutional analysis, see e.g., Navy 6/16/2000 Motion to Dismiss at 23, Adair v. Danzig, 00cv566, Doc. No. 5 (“Navy chaplains are not private clergy but are officers in the Navy”). Plaintiffs do not doubt chaplains are naval officers; however, as this Circuit has found, chaplains are “unique” naval officers, serving simultaneously “as clergy or a professional representative of a particular religious denomination and as a commissioned naval officer.” In re England, 375 F.3d 1169, 1171 (D.C. Cir. 2004) [citation omitted], cert denied, 543 U.S. 1152 (2005). The constitutional importance of that uniqueness is manifest in many ways and is an essential part of any Establishment Clause analysis.2
2 Adair v. England, 183 F.Supp.2d 31, 60-62 (D.D.C. 2002), applying the presumption of regularity in the Navy’s motion to dismiss, found chaplains served on promotion boards as naval officers, not denominational representatives. Plaintiffs’ Motion to Amend/Correct Interlocutory Order, Doc. No. 21 (7/18/08), seeks correction of that determination based on evidence rebutting the presumption that shows chaplains act as denominational representatives in distributing benefits, the Navy hires and treats chaplains as denominational representatives, and the Navy itself has argued to this and other courts they serve as denominational representatives on boards.
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A. Chaplains Are Denominational Representatives on Loan from Their Faith Community
Chaplains are hired and commissioned as faith group representatives “on loan from ... their faith communities” to the military, Declaration of CH (Col.) Cecil Richardson, Exec. Dir. Armed Forces Chaplains Board in Rigdon v. Perry, 962 F.Supp. 150 (D.D.C. 1997) (Exhibit 6), ¶ 2. Unlike all other officers, chaplains have “rank without command”, id. ¶ 4; Rigdon, 962 F.Supp. at 159 (emphasis in original), 157-158 (same). Naval Regulation (NR) 1140.3 reflects this principle: a chaplain can not be “a superior commissioned officer with respect to a person in the naval service who is junior in rank.” Prom. PSJ Exhibit 6, incorporated by reference. Navy regulations treat chaplains differently than all other officers because of their uniquely religious status as denominational representatives. Chaplains are forbidden to carry arms, OPNAVINST 1730.1D (Exhibit 7) at 4, ¶ 5.a (7); “shall not be assigned duties that violate their noncombatant status or the religious practices of the chaplain’s religious organization, undermine privileged communication, ... involve the management of funds other than the ROF [religious offering fund]”, or perform normal duty watches, id. at 9, ¶ 5.e (11). Chaplains alone are excused from the duty under NR 1134 to report all violations of the uniform Code of Military Justice. Prom. PSJ Exhibit (“Ex.”) 6
The Navy’s unique restrictions on chaplains forbid chaplains from engaging in practices that might suggest the exercise the sovereign’s authority, in contrast to the very nature and role of a commissioned officer, to give orders in the Sovereign’s name. Chaplains’ uniquely religious nature and role is evident in the fact they must have an endorsement to be appointed as a chaplain, Department of Defense (DOD) Instruction 1304.28 (Prom. PSJ Exhibit 5), and must be separated if they lose their denominational endorsement, decisions outside the Navy’s control.
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10 U.S.C. § 643 (separation required upon loss of professional qualification). The DOD 2/9/1987 report to Congress, “Study of the Representation of Religious Faiths in
the Armed Forces”, required by § 513 of the FY 1987 National Defendants Authorization Act, stated the “substantial majority of a chaplain’s time is spent in tasks that are clearly religious in nature, such as conducting religious services, education, and pastoral counseling [which] are primary to the chaplain’s role as a cleric in the military.” Section I-12 (Relevant extracts at Exhibit 8) (emphasis added). “Because of their role as religious leaders, chaplains are sought after and become deeply involved in such programs as substance abuse, marriage enrichment, ethics and moral development, interpersonal relationships, and leadership”, id. at I-13, and “even those activities not clearly identified as religious in nature are related to the execution of pastoral ministry.” Id. at I-14 (emphasis added).
B. Navy Regulations, the Military Code of Conduct and the Geneva Convention Recognize Chaplains’ Religious Nature Makes Them Unique Officers
Chaplains and the Navy are constantly reminded of chaplains’ uniquely religious nature because each chaplain must carry a military identification card identifying him as a member of Geneva Convention Category IV. Recognizing the uniquely religious nature of chaplains, the Geneva Convention treats chaplains differently than all other military personnel, including medical personnel, who also have a separate and distinct status under the Geneva Convention. The Convention classifies chaplains as “retained personnel”, not prisoners of war. Chaplains must be allowed to exercise their ministry while in a retained status, and unlike all other military personnel, must be returned to their parent military organization if there is no need for their services as a religious leader. See Prom. Facts 22-24; Prom. PSJ at 14-15.
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The Armed Forces’ Code of Conduct (the “Code”) establishes unique responsibilities for chaplains when they are in captured status. For example, all military personnel except chaplains have an obligation to seek to escape by any means possible. Chaplains however, must stay and minister to prisoners of war, as long as the capturing power recognizes their religious nature and treats them as retained personnel. DODI 1300.21 (Code of Conduct Training and Education) ¶ E2.3.3.3 (Prom. PSJ Ex. 10 ).
The most significant indicator of chaplains’ religious nature is that the Code, id., ¶E2.3.4; NR 1140.3, Prom. PSJ Ex. 11; and the Navy’s Code of Conduct, SECNAVINST 1000.9 (Prom. PSJ Ex. 9), forbids chaplains from exercising command over any military personnel, even if they are the only officer among captured forces. Command is the ability to give orders in the Sovereign’s name which the law requires subordinates obey. Even under the extreme situation of capture by an enemy force and the absence of any other commissioned officer, the senior enlisted member becomes the “commander”, whose orders the chaplain must obey.
C. Chaplains Act as Denominational Representatives When Awarding Benefits to Denominational Representatives
The evidence measuring CHC selection board results when chaplains serve as board members shows the denominations of the chaplain board members matter and candidates for the award of benefits who share a denomination with a board member do better and have a higher probability of selection than a similarly situated candidate who does not. Facts 5-20. Among those preferred denominations are those who have had the Chief as board president. Fact 14. II. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR CLAIM THE
CHALLENGED PRACTICES VIOLATE THE ESTABLISHMENT CLAUSE Plaintiffs claim three distinct Navy selection board practices violate the Establishment Clause. First, the Navy appoints the Chief or his Deputy as president of chaplain selection
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boards.3 Second, the Navy’s practice of using small boards and secret voting allows one chaplain board member to manipulate the board results with no accountability, a fact the Navy’s own investigations verify, Facts 2-4. Third, is the use of chaplains as board members without effective guarantees the delegated power to vote for the award of government benefits to other denominational representatives is exercised in a manner neutral to religion, i.e., solely for secular, neutral, and non-ideological purposes.
The question is not will every chaplain act as a denominational representative and prefer his/her denomination on boards awarding or denying benefits, but whether the “potential for conflict” between religious neutrality and/or favoritism “inheres in the situation.” Larkin v. Grendel’s Den Inc., 459 U.S. 116, 125 (1982) (emphasis added) (quoting Levitt v. Committee for Public Ed., 413 U.S. 472, 480 (1979)). When evidence suggests a challenged practice results in denominational preferences or favoritism, the practice must be reviewed under strict scrutiny. Adair II, 217 F.Supp.2d at 14-15; County of Allegheny, 492 U.S. at 608-09 (“we have expressly required ‘strict scrutiny’ of practices suggesting ‘a denominational preference’”). The practice fails strict scrutiny unless the government can show a narrow tailoring of the means to achieve a compelling purpose. Each challenged practice fails strict scrutiny, the three-part Lemon test, or the “objective observer” standard. See McCreary County v. ACLU of Ky., 545 U.S. 844, 862-63, 866 (2005) (defining and applying the objective observer test).
A. The Navy’s Award of Government Benefits to Clergy and Commissioned Denominational Representatives is not Denominationally Neutral
The Navy awards government benefits to denominational representatives beginning with
3 The issue is the Chief being president of chaplain selection boards selecting denominational representatives for the award of benefits.
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the process of accessioning civilian clergy into the Navy, resulting in the appointment of civilian clergy and religious leaders as Navy chaplains. The Navy continues to award government benefits to commissioned denominational representatives, i.e., chaplains, in the form of various choice assignments necessary for progress up the career ladder, continuation on active duty after the initial three-year tour of service, promotions, and continuation on active duty when it becomes necessary to reduce the ranks of active duty officers through selective early retirement (“SER”).
1. The Chief of Chaplains’ role and influence as a decision maker in the award of Navy benefits introduces religion into the decision and results in denominational favoritism
Statistical analysis shows two distinct groups of chaplains in terms of those who benefit from the power of the Office of the Chief of Chaplains: those who belong to a Chief’s denomination and those who do not.
Plaintiffs’ expert, Dr. Harald Leuba, PhD, examined the extensive impact of the role of the Chief in the distribution of government benefits to denominational representatives. His analysis is very simple. He looked at the results in the award of various benefits, i.e., accession, retention, and promotion, in terms of two groups: those denominations who have had a Chief, and those denominations who have not had a Chief. Preferences, ¶¶ 2.10.4-2.10.11 (accessions); 2.20.42.20.5 (promotions); 2.24 (retention). His statistical analysis shows chaplains who share the denominations of the Chief are preferred, uniformly receive substantial benefits because of the Chief’s position of influence, and those benefits linger after the Chief retires. Facts 14 -18. During a Chief’s tenure, accessions for his denomination increase, Preferences, ¶¶ 2.10.4-2.10.11 and Fig. 6, his denomination has higher promotion rates than other denominations who have not had a Chief, Facts 14-15, and the percentage of the Chief’s denomination at the critical rank of commander likewise increases, Preferences, ¶¶ 2.20.4-2.20.5. This result is unexplainable
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except by the Chief’s influence on selection, retention and promotion boards, discussed below, because it is a characteristic of all Chiefs regardless of denomination.
Fact 14 provides a chart comparing promotion results at commander and captain of two groups, those denominations who have had a Chief and those groups which have not. The higher promotion rates for the Chiefs’ denominations is irrefutable evidence the status of the Chief results in greater benefits to his denomination. See Preferences at 35, Table 9. The difference in selection rates for each rank are statistically significantly different.
There is also a lingering favorable effect for the Chiefs’ denomination because during his tenure, its chaplains have assumed greater positions of responsibility, which also increases promotion potential. See report by CAPT Larry Ellis, Non-Denominational Detailing, 3P-PSJ Ex. 49, ¶¶ 4-5 (showing domination of key CHC positions by liturgical denominations which are also the Tier I and II favorites, Fact 11, which have had the most Chiefs).
2. The denomination of the Chief of Chaplains benefits during his tenure as Chief and afterward in every personnel management area that awards benefits to chaplains
Promotions are just one aspect of the substantial career benefits the Navy distributes to denominational representatives through Chaplain Corps programs. Other benefits awarded to denominational representatives are accessions, continuation of active duty after an initial tour or as a result of SER, and key assignments. Statistical analysis of all these areas and the CHC’s benefit distribution programs, whose decisions are often made by various chaplain staffed boards in which the Chief of or his Deputy serve as board presidents and other chaplains serve as board members, shows those denominations which have had a Chief receive higher benefit award rates, i.e., the denomination of a Chief receives an advantage. Fact 14, 18.
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B. The Navy’s Chaplain Selection Board Secret Voting Procedures Violate the Establishment Clause’s Mandate that the Distribution of Government Benefits To Denominational Representatives Must Be Religiously Neutral
The Establishment Clause forbids the Navy from making a naval officer’s “adherence to a religion relevant in any way to a person’s standing in the political [or naval] community.” County of Allegheny, 492 U.S. at 594 (quoting Lynch v. Donnelly, 465 U.S. 668, 686 (1984)). The Navy cannot use practices to award benefits that convey “a message that religion or a particular religious belief is favored or preferred.” Id. at 593 (emphasis in original) (quoting Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O’Connor, J., concurring in judgment); Thomas v. Review Board, 450 U.S. 707, 717-18 (1981) (government cannot award or deny benefits on the basis of religion); Sherbert v. Verner, 374 U.S. 398, 404 (1963) (same).
The ability of the Chief to impact or influence the award of current benefits through selection boards arises from the fact he is a Rear Admiral and the head or chief officer of his Corps with its corresponding status, power, and influence that necessarily comes with his rank and ability/power to affect the lives of all chaplains below him. It is also the reality of organizations and bureaucracies, subordinates try to please the boss. The challenged board procedures facilitate favoritism with no accountability, checks or balances.
The board voting procedures, which Plaintiffs have challenged in their Promotion PSJ, allow one board member to manipulate the board’s results. The NIG investigation of the FY 00 Chaplain Captain selection board documented in detail the process the CHC called “zeroing out”, where one board member’s zero vote effectively destroyed a candidate’s chances for promotion because of the small number of board members and the secret “zero” vote. In that case, the female board member zeroed out the female candidate because of the board member’s view of women in ministry, a theological or “ideological” issue, differed from the applicant. This and the
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evidence in this case are examples why, “[t]he potential [for abuse of government power] inheres in the situation.” Larkin, op. cit., Grumet, 512 U.S. at 698-99, and the delegation of discretionary civic power to persons defined by their religious identity must be accompanied by “effective guarantees the delegated power will be used exclusively for secular, neutral, and nonideological purposes.” The Supreme Court did not choose the words “effective guarantees” lightly, nor can they be considered dicta; they mean effective guarantees, consistent with the Court’s longstanding rule that it is the Judiciary’s role and duty to carefully examine the practices to make sure Establishment Clause values, protections and concerns are not evaded.
The Baker NIG, Fact 2, provides an example of a Rear Admiral board President’s ability to influence the board through a comment that to some may seem innocuous, but results in a denied promotion. The NIG found RADM Baker made a comment suggesting a candidate lacked leadership. Neither the Board members nor RADM Baker remembered the comment, but the recorders did and their recollection was enough to convince the NIG RADM Baker’s comment produced the challenged non-selection. This validates RADM Holderby’s testimony to the NIG investigating the FY 97 and 98 CHC Commander that he could influence board members because of his position and rank. Chiefs’ PSJ Exhibit 9.
Absent strict accountability in the award of benefits to other denominational representatives, there can be no effective guarantees to preclude such improper influences when a denominational representative exercises such discretionary civic power. “The potential for conflict inheres in the situation.” Larkin, 459 U.S. at 125 (quoting Levitt, 413 U.S. at 480).
C. The Denomination of Chaplain Selection Board Members Improperly Influences the Board results
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“More than 80% of the uncertainty in whether one will be promoted or not can be explained by the correlation (similarity) between the religious beliefs of the Promotion Board members and the candidate’s denomination!” Preferences, ¶ 2.19.11.2 and Figure 7. Facts 8, 11, 14, and 20 all show denominational prejudice and favoritism at work in the chaplain selection processes that award or deny benefits to chaplain candidates or chaplains. Facts 8 and 11 show a relationship/correlation between aboard member’s denomination and selection board results.
D. The Challenged Practices Fail Strict Scrutiny Strict scrutiny assumes a practice is unconstitutional and places the burden on the defendant to show the practice is narrowly tailored to achieve a compelling governmental purpose. Lac Vieux Desert Band of Lake Superior Chippewa v. Michigan Gaming Control Board, 276 F.3d 876, 879 (7th Cir.) (“We start by presuming the statute is unconstitutional. Detroit can overcome that presumption by proving that the ordinance is necessary to serve a compelling state interest and narrowly drawn to achieve that interest.”), cert denied, 536 U.S. 923 (2002). Defendants can show neither.
1. Using the Chief or Deputy as a chaplain selection board president is not narrowly tailored to achieve a compelling government purpose
Narrow tailoring requires the practice be designed in such a manner that it does not violate the Establishment Clause’s purposes or produce the results the Clause was designed to prevent. Fact 8 shows that allowing the Chief or his Deputy to serve as a chaplain selection board president results in denomination becoming an influence, with the Chief’s denomination receiving a benefit that cannot be explained other than by his influence, rank, and the fact he is the “boss.” This is not narrow tailoring.
2. Using chaplains as chaplain selection board members is not narrowly tailored to achieve a compelling government purpose
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Plaintiffs unrebutted evidence, Facts 11-20, shows that allowing chaplains to serve on chaplain selection boards using the current procedures results in denomination becoming relevant to a candidate’s standing in the community, violating the Establishment Clause’s mandate of governmental religious neutrality. County of Allegheny, 492 U.S. at 594.
E. The Challenged Practices Violate the Lemon Test The D.C. Circuit has made it clear that Lemon or strict scrutiny is the law of the Circuit, regardless whether Congress, the military or some other form of government is accused of violating the Establishment Clause. “The touchstone for evaluating church-state relations under the Establishment Clause is the test enunciated by the Supreme Court in Lemon v. Kurtzman.” United Christian Scientists v. First Church of Christ Scientist, 829 F.2d 1152, 1161 (D.C. Cir. 1987). No intervening decision has changed this Rule. United Christian Scientists is especially instructive and controlling because it reviewed a law passed under the Constitution’s plenary grant of exclusive patent and copyright authority to Congress in Article 1, § 8, clause 8. The same section, clauses 11-16, contains Congress’s authority to organize and regulate the Armed Forces. While courts often defer to Congress’s authority in such special areas, United Christian Scientists did not defer, applied Lemon and held Congress violated the Establishment Clause by granting to one branch of the Christian Science Church exclusive control over its primary doctrinal publication. 829 F.2d at 1154, 1168, 1171. United Christian Scientists held Lemon’s approach was mandated, id. at 1161. It then distinguished between Larson’s strict scrutiny of facial discrimination among religions and Lemon’s tri-part test, which was “intended to apply to laws affording a uniform benefit to all religions, not to provisions like the statute in [Larson] that discriminate among religions.” Id. at
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1163 n. 49 (quoting Larson, 456 U.S. at 252). United Christian Scientists applied Lemon rather than Larson because strict scrutiny had not been raised by the parties in the District Court, id., and found Congress’s proffered concerns for the law were not “clearly secular,” id. at 1165, Congress had fused civil and religious power, and placed its “official stamp of approval” on one set of religious views. Id. at 1165-66. If “Congress ... may not exceed the bounds of benevolent neutrality toward religion”, id. at 1166, the Navy may not do so either.
The Supreme Court has not confronted an Establishment Clause challenge to a military practice. This Circuit did so in Anderson v. Laird, 466 F.2d 283 (D.C. Cir.), cert denied, 409 U.S. 1076 (1972), holding the Service Academies’ mandatory chapel regulations for all cadets and midshipmen were unconstitutional. The Anderson district court gave great deference to the Academies’ “military expertise” arguments, see id. at 285 ("the court accorded great weight to the opinions and judgments of the military personnel concerned with officer training”), 290, 293 (“deference to the unique role of the military in our society”). The D.C. Circuit rejected that because such deference was incompatible with the Establishment Clause. Id. at 285 (“These regulations ... exceed the constitutionally permitted scope of governmental power.”), 290 (“This principle was mistaken by the District Court”), 293 (“language of the regulations reveals” an Establishment Clause violation). Anderson did not cite Lemon, decided 20 days after Anderson’s oral argument. However, Anderson replicated Lemon’s first two tests and its analysis follows Lemon’s, as seen in both Judges Bazelon’s and Leventhal’s opinions, including discussion and application of the “purpose and effect test” developed in McGowan v. Maryland, 366 U.S. 420, 453 (1961); Torcaso v. Watkins, 367 U.S. 488, 489-90 (1961); Engel v. Vitale, 370 U.S. 421, 424 (1962), and other precedents, Anderson, 461 F.2d at 291-93.
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Anderson recognized that religious issues did “not involve programs vital to our immediate national security, or even to military operations or disciplinary procedures” and held “it is for this Court to assess that decision [to require mandatory chapel participation] in constitutional terms.” Id. at 296; see Adair v. England, 183 F.Supp2d 31, 50 (D.D.C. 2002) (“These [challenged] policies relate to quality of life issues for military personnel and have no specific operational, strategic or tactical objective”). Rejecting the District Court’s holding “that all First Amendment rights must bend when they conflict with military interests,” Anderson held “[t]he Supreme Court’s interpretations of the Establishment Clause refer to no overriding secular interests which could ever justify a government’s imposition of those religious activities which the Clause was written to abolish.” Id. at 290. Judge Leventhal’s concurrence found no military necessity justifying an establishment of religion, id. at 297, or a compelling government purpose, id. at 298. In effect, he applied a strict scrutiny analysis. See, e.g., id. at 302 (various references to the requirement the government show its “interest is compelling”).
1. The challenged practices fail Lemon’s second prong by creating denominational preferences and prejudice
Defendants can not pass Lemon’s second test, i.e., the challenged programs “must neither advance nor inhibit religion”, 403 U.S. at 412. The challenged practices clearly advance the denominational interests of the Chiefs’ denominations and benefit both the favored clergy applicants and chaplains and the denominations themselves financially. See Facts 14-18. The challenged practices allow one member of the board to manipulate the board results allowing theological or ideological purposes to influence who is awarded or denied government benefits. Facts 2-4.
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The Navy’s challenged practices have produced a denominational hierarchy of favorites and those favored denominations have received more promotions and other benefits than the disfavored denominations, which include Plaintiffs. Facts 6, 11. Thus, the challenged programs resulted in favoritism for some denominations and prejudice for others, making religion relevant to a chaplain’s standing in the naval community. This violates the Establishment Clause’s neutrality mandate. County of Allegheny, 492 U.S. at 594; Larkin, 459 U.S. at 125 (civic power not “used in a religiously neutral way”); Grumet, 512 U.S. at 703.
2. The challenged programs entangle the government with religion The government becomes entangled in religion when it makes religion important to the award of benefits or to an individual’s standing in his community. County of Allegheny, 492 U.S. at 594. Analysis of the practices’ results show when awarding benefits (a) the Navy prefers certain religions, especially those of the Chief, (b) the Navy awards these benefits without the necessary effective guarantees, and (c) the symbolic union of government and religion conveys the message that religion is important and has meaning in the award or denial of government benefits. Facts 8 and 11-20 show these practices put the Navy’s power and influence behind religion and specific religions and delegates unchecked, discretionary civic power “to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism”, violating the Establishment Clause. Grumet, 512 U.S. at 709 -10. The challenged practices here are similar to the delegation of civic discretionary authority Grumet found violated the purpose of the Establishment clause, preventing fusion of government and religion. The challenged practices allow the delegation of discretionary civic authority to persons defined by their religious character without any effective guarantees, as shown by Facts 8 and 11-20, the delegated power would be used solely for secular, neutral, and nonideological
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purposes. The Facts show the power is used in a religiously non-neutral manner to advance ideological and sectarian purposes.
The practices challenged here create the same problem confronted in Grumet, the challenged practices “leaves the court without any direct way to review such state action for the purpose of safeguarding a principal at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligion.” Id. at 703 (citing various precedents). “The Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with [denominational representatives].” Larkin, 459 US at 127. Here, the challenged practices create “a fusion of governmental and religious functions,” id. at 126 (citing various precedents). The specific religious function fused with government is the advancement of a denomination by its denominational representatives. See Corporation of Presiding Bishop v. Amos, 485 U.S. 327, 337 (1987) (church’s “very purpose” is to advance religion).
The mere appearance of a joint exercise of [executive] authority by church and state provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred. It does not strain our prior holdings to say that the [practices] can be seen as having a ‘primary’ and ‘principal’ effect of advancing religion. Larkin, 459 U.S. at 125-26. D. The Challenged Programs Fail the Reasonable Observer Test Recent Supreme Court precedents have collapsed Lemon’s three-part test into a two-part test known as the “endorsement test” combining Lemon’s second and third prongs, the result and entanglement questions. The test asks whether the objective or reasonable observer would perceive the challenged governmental action as an endorsement or preference for or against religion, a specific religion, or a religious viewpoint. County of Allegheny asked whether the
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reasonable observer would perceive as religious endorsements the displays of (1) a crèche on the main staircase of the county courthouse and (2) a menorah in another display including other seasonal symbols. The Court found the placement of the crèche communicated endorsement because of its location, 492 U.S. at 599-602, whereas the menorah passed constitutional review because it was merely one of several holiday symbols in a group. Id. at 613-16, 620-21. In each case the Court reached its answer after examining the practice’s context and the message the practice communicated.
1. The reasonable observer examines the challenged programs’ history and purposes
McCreary County held courts should analyze the purpose of the challenged practice from the viewpoint of the reasonable or objective observer and asked whether an objective observer would conclude the display of the Ten Commandments with other historic documents in two county courthouses communicated governmental endorsement of religion. The McCreary petitioners argued the Court should ignore the history of the challenged displays and only look at the last iteration of the display. 545 U.S. at 863-66, 871-72. The Court rejected this argument and held the “objective observer’s eyes” were to look closely at the historical facts which often revealed the purpose behind the challenged practice or statute. Id. at 862. The Court also rejected petitioner’s attempt to trivialize the inquiry into the practice’s purpose. Id. at 86364. The Court emphasized “the purpose needs to be taken seriously under the Establishment Clause”, and courts should reject sham reasons. Id. at 874.
2. The reasonable observer would conclude the challenged programs result in illegal preferences that advance denominational interests
The reasonable observer would conclude (1) the challenged practices clearly benefit a specific number of all denominations while prejudicing those which have not been
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fortunate enough to have a Chief; (2) the fact that Catholics are treated more favorably and Southern Baptists are not treated the same as the other denominations who have had Chiefs is another indication of religious bias at work; and (3) the message communicated clearly in the results of these practices is that denomination is relevant to a chaplain’s standing in the chaplain and naval communities.
[T]he Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Wallace v. Jaffree, 472 U.S. at 69 (O'CONNOR, J., concurring in judgment) (internal quotation marks omitted). CFGC, 454 F.3d at 302 adopted this standard: “Where, as here, the charge is one of official preference of one religion over another, such governmental endorsement ‘sends a message to nonadherents [of the favored denomination] that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’” (Citing Lynch, op. cit.). The objective observer would also know the denominational preferences follow the same pattern of prejudice in all areas with Catholics being preferred while Non-liturgical chaplains like Plaintiffs are prejudiced; they always start out with the most personnel at the entry ranks of LTJG and LT, but they do not receive their fair share the benefits at the higher ranks. Facts 8, 14, 16, 19-21. The objective observer would know this results in financial and other benefits to the preferred denominations. Fact 20; Preferences, ¶¶ 25.1-25.8.3. The objective observer would also recognize that if the categories before the Court were racial or ethnic origin instead of
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denominations, FGCs or denominations who have had Chiefs, there would be no question forbidden prejudice was the apparent message the practices communicated. III. PLAINTIFFS WILL SUCCEED ON THEIR CLAIM THE CHALLENGED
PRACTICES VIOLATE DUE PROCESS The Fifth Amendment’s Due Process Clause has an inherent equal protection component which requires the Navy to treat all similarly situated persons equally. In the promotion or selection for government benefits context, this means that each applicant has an equal opportunity to receive the benefit and a selection is made solely on the strength of his or her record. “Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639 (1943). Larson illustrates the inherent conflict denominational favoritism creates with the Equal Protection component of the Due Process Clause. Striking down the challenged statute that sought to impose regulations on some religious organizations but not others based on the source of their contributions, the Court found “this statute does not operate evenhandedly, nor was it designed to do so. The 50% rule ... effects the selective imposition of burdens and advantages upon particular denominations.” Id. at 253-54 (emphasis in original). See also Miller v. City of Cincinnati, 622 F.3d 524, 540 (6th Cir. 2010) (the Equal Protection Clause "protects against invidious discrimination among similarly situated individuals or implicating fundamental rights"); Larkin, 459 U.S. at 125 (“The churches’ power under the statute is standards, calling for no reasons, findings, or reasoned conclusions. That power may therefore be used . . . to promote goals” that are not religiously neutral or secular).
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The evidence shows all applicants for Navy benefits do not have an equal opportunity to receive them because some denominations are preferred and others, like Plaintiffs’, are not. IV. THE CHALLENGED PROGRAMS CAUSE IRREPARABLE HARM
Irreparable harm is always measured against the liberty interest concerned; “the pertinent liberty here is protection against government imposition of a state religion or religious preference.” CFGC, 454 F.3d at 302. Plaintiffs allege the challenged practices violate the Establishment Clause, introducing and producing religious favoritism and denominational considerations into the award of government benefits. They support their allegation with evidence, see Facts 2-20 above. “[W]hen an Establishment Clause violation is alleged, infringement occurs the moment the government action takes place-without any corresponding individual conduct-then to the extent that the government action violates the Establishment Clause, First Amendment interests are “threatened or in fact being impaired.” CFGC, 454 F.3d at 303 (citing Elrod v. Jones, 427 U.S. 347, 373 (1976) (plurality opinion)). CFGC makes it clear
because of the inchoate, one-way nature of Establishment Clause violations, which inflict an “erosion of religious liberties that cannot be deterred by awarding damages to the victims of such erosion,” City of St. Charles, 794 F.2d at 275, we are able to conclude that where a movant alleges a violation of the Establishment Clause, this is sufficient, without more, to satisfy the irreparable harm prong for purposes of the preliminary injunction determination. Id. V. PLAINTIFFS MEET THE OTHER INJUNCTION CRITERIA A. Terminating Defendants’ Unconstitutional Practices Poses No Burden or
Injury on Defendants The Navy will suffer no harm whatsoever if the Court orders it to stop the challenged practices that result in denominational preferences, favoritism and prejudice. The claims and procedures challenged here do not involve national security, military training or some aspect of
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the Navy’s operations where a stay until the Court can evaluate Plaintiffs PSJs’ issues would result in possible damage to the nation or naval operations. The issue is whether certain procedures involving ordinary personnel decisions awarding or denying government benefits to commissioned denominational representatives violate the Constitution. The Navy simply cannot show any legitimate interest harmed by being enjoined from violating the Establishment Clause in chaplain promotion decisions. Navy officials are charged with following the law as well as their own regulations. “It is a basic tenet of our legal system that a government agency is not at liberty to ignore its own laws and that agency action in contravention of applicable statutes and regulations is unlawful.” Dilley v. Alexander, 603 F.2d 919, 920 (D.C. Cir. 1979).
The Navy cannot claim any prejudice to its promotion operations. The promotion planning cycle and implementation has not yet begun, no orders and travel arrangements have been issued for board members. If the Navy wants or needs to hold promotion and accession boards, it may do so by following the same procedures used by the other services, using bigger boards, providing procedures that ensure accountability, such as having each board member’s vote for each candidates recorded publicly and using other Admirals as selection board presidents. Some of these are the same recommendations urged on the Navy by its consultant, CNA in its March 2000 Promotion Study at 2, Prom. PSJ Ex. 14 (“The Navy may want to adopt the policy of the Army and Air Force” using bigger boards made up of line officers). The Navy simply cannot show any legitimate interest harmed by being enjoined from violating the Establishment Clause in chaplain promotion decisions.
B. There Are No Third Party Rights That must Be Addressed There are no unrepresented parties here that would be prejudiced by a preliminary injunction. Chaplains other than Plaintiffs and those within the putative class would not be
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prejudiced because they would be protected from the denominational bias and favoritism inherent in the current system. Plaintiffs seek a level playing field for the award of benefits, not favoritism or a preferred status.
C. Terminating Defendants’ Unconstitutional Practice Is in the Public Interest “When a constitutional violation is likely, moreover, the public interest militates in favor of injunctive relief because ‘it is always in the public interest to prevent violation of a party's constitutional rights.’" Id. (quoting Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998)). A consistent Supreme Court theme in many of its Establishment Clause cases is that Clause’s purpose was to avoid the divisiveness, hostility and friction resulting from the government’s union and cooperation with religion. “The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy.” Everson v. Board of Ed., 330 U.S. 1, 8-9 (1947). “At the time of the Revolution, Americans feared not only a denial of religious freedom, but also the danger of political oppression through a union of civil and ecclesiastical control.” Larkin, 459 U.S. 126 n.10 (citing B. Bailyn, Ideological Origins of the American Revolution 98 – 99, n. 3 (1987)). By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval from each King, Queen, or Protector that came to temporary power. Engel v. Vitale, 370 U.S. 421, 429 (1962); accord Everson, 330 U.S. at 8-11.
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This case illustrates the very evil the Establishment Clause was designed to prevent. A group of chaplains from various Non-liturgical faith groups is before this Court seeking redress from the government’s alliance with and favoritism to other religious groups. Benefits are given and denied based on religious affiliation.
Confronting and forbidding the very government actions that produce “the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval” serves the public interest. Courts have held it is in the public interest to vindicate First Amendment rights. Rigdon v. Perry, 962 F.Supp 150, 165 (D.D.C. 1977); see also, e.g., Utah Licenced Bev. Ass’n v. Leavitt, 256 F.3d 1061, 1076 (10th Cir. 2001). It is in the highest public interest to make sure our military remains neutral in matters of religion. The public has a strong interest in having a military that conducts itself fairly and according to the law. Cooney v. Dalton, 877 F. Supp. 508, 515 (D.Hawaii 1995) (enjoining the discharge of a sailor). That interest is particularly evident in this case. “We ... hold that a party alleging a violation of the Establishment Clause per se satisfies the irreparable injury requirement of the preliminary injunction calculus.” CFGC, 454 F.3d at 304. The very purpose of an injunction is to stop irreparable harm. The Navy has clearly violated Title 10, the Secretary’s own instructions and the Establishment Clause. When agencies stray beyond the limits set for them by Congress, courts have a duty to require that they comply with the law. See Dilley, 603 F.2d at 914.
“The federal Constitution embraces and embodies the cardinal principle that this is a nation subject to the rule of law, and as such, agents of the government are bound to follow the
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law.”4 Wilkinson v. Legal Services Corp., 27 F. Supp. 2d 32, 57 (D.D.C. 1998) (citing United States v. Lee, 106 U.S. 196, 220-21 (1892) and other cases). See also Dilly, 603 F.2d at 920 (“It is a basic tenet of our legal system that a government agency is not at liberty to ignore its own laws and that agency action in contravention of applicable statutes and regulations is unlawful”), and 921 (“courts have shown no hesitation to review cases in which a violation of the Constitution ... is alleged”).
It is both absurd and seditious to argue that allowing the government to operate outside of the Constitution is in the public interest. Defendants can show no burden if they must operate their chaplain management and retention programs in accord with the Constitution. Plaintiffs have met all the criteria for an injunction.
CONCLUSION The Plaintiffs will succeed on the merits of their Establishment Clause claims. First, the challenged practices fail strict scrutiny, the endorsement and Lemon tests because they communicate an unmistakable message that some denominations are favored and a chaplain’s denomination is important to his or her standing in the CHC and the Navy. Second, the Court of Appeals has already held Plaintiffs allegation the Navy has violated the Establishment Clause shows irreparable harm. CFGC, 454 F.3d at 304. Third, an injunction will not harm the Navy or interfere with its mission of meeting free exercise needs of DON personnel. No harm results from following the Constitution and viable alternatives are readily available. The other Armed Services do not employ the challenged practices in their selection boards.
4 Wilkinson, 27 F. Supp. 2d at 57-64 provides an extensive discussion of the Accardi Doctrine, the rule government must obey the law, referring to Accardi v. Shaughnessy, 347 U.S. 260 (1954).
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Fourth, ordering the Navy to follow the Constitution is in the public interest. The

Establishment Clause’s purpose is to preclude the divisiveness, animosity, factionalism and strife

that follows preferring one religion over another. Courts have the constitutional authority and

duty to confine other branches of government within their constitutional and statutory limits.

Respectfully submitted,

Dated: July 22, 2011

/S/ Arthur A. Schulcz, Sr. ARTHUR A. SCHULCZ, Sr. D.C. Bar No. 453402 Counsel for Chaplaincy Plaintiffs 2521 Drexel Street Vienna, VA 22180 703-645-4010 Of Counsel:

Douglas McKusick, Esq. THE RUTHERFORD INSTITUTE P.O. Box 7482 Charlottesville, VA 22906-7482

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EXHIBIT LIST

Exhibit No. Description

1.

Dr. Harald R. Leuba, Ph.D., 12/24/08 Expert Declaration, Features (policies and

practices) of the U.S. Navy Chaplain Corps’ personnel system which enable,

foster, and encourage denominational discrimination

2.

CNA’s Senior Leadership Conference 2000 briefing chart: promotion percentage

by faith group cluster

3.

Dr. Harald R. Leuba, PhD., 9/13/10 Expert Declaration, Old Warnings, New Data

4.

Dr. Harald R. Leuba, PhD., 1/1/11, Expert Declaration, Statistical Evidence of the

Navy’s Religious Preferences

5.

Dr. Harald R. Leuba, PhD., 5/30/11 Expert Declaration, Reasons Change, Seasons

Change

6.

Declaration of CH (Col.) Cecil Richardson, Exec. Dir. Armed Forces Chaplains

Board in Rigdon v. Perry, 962 F.Supp. 150 (D.D.C. 1997)

7.

OPNAVINST 1730.1D, “Religious Ministry in the Navy”

8.

DOD 2/9/1987 report to Congress, “Study of the Representation of Religious

Faiths in the Armed Forces”, required by § 513 of the FY 1987 National

Defendants Authorization Act

9.

Declaration of Arthur A. Schulcz, Sr., Authenticating Exhibits

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CERTIFICATE OF SERVICE I hereby certify that on July 22, 2011, I electronically filed the foregoing Plaintiffs’ Motion for a Preliminary Injunction Enjoining Defendants’ Use of the Chief or Deputy Chief of Chaplains and Chaplains as Chaplain Selection Board Members in Decisions Awarding Government Benefits to Denominational Representatives Without Effective Procedural Guarantees Precluding Denominational Favoritism or Bias with the Clerk of the Court to be served by the Court’s CM/ECF system on the following: Christopher Hall Attorney, Civil Division U.S. Department of Justice 20 Massachusetts Ave., NW Room 7322 Washington, D.C. 20001
/S/ Arthur A. Schulcz, Sr. ARTHUR A. SCHULCZ, SR. Counsel for In e Navy Chaplaincy Plaintiffs D.C. Bar No. 453402 2521 Drexel Street Vienna, VA 22180 703-645-4010
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 Case 1:07-mc-00269-GK Document 134 Filed 10/03/12 Page 1 of 206

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

In re Navy Chaplaincy, aka

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Navy Non-liturgical Chaplains,

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Plaintiffs,

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THE UNITED STATES NAVY

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Washington, D.C. 20530

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and

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THE SECRETARY OF THE NAVY

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Room 4E686 - The Pentagon

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Washington, D.C. 20350-1000

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Defendants.

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CASE NO. 07-mc-269 (GK)

IN RE NAVY CHAPLAINCY CONSOLIDATED COMPLAINT

This Complaint consolidates, in accord with the District Court’s July 25, 2012, Case

Management Order #1, the claims of three previously separate cases filed in the District Court by

three groups of Non-liturgical Navy chaplain Plaintiffs at different times, including two chaplain

endorsing agencies in their personal and representative capacities. Those now closed cases are:

Chaplaincy of Full Gospel Churches v. [the named Secretary of the Navy], 99cv1945; Adair v.

[the named Secretary of Navy], 00cv566; and Gibson v. U.S. Navy, 06cv1696 (GK).

The Court previously consolidated all three cases into In re Navy Chaplaincy, 07mc269

(GK), and ths caption keeps that case identity. To facilitate review and reference to the facts,

Counts, claims, and relief because of the Consolidated Complaint’s length, an Index is provided,

followed by the listing of the organizational and 65 chaplain plaintiffs and the body of the

Complaint.

Case 1:07-mc-00269-GK Document 134 Filed 10/03/12 Page 2 of 206
IN RE NAVY CHAPLAINCY INDEX TO THE
CONSOLIDATED COMPLAINT INDEX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a Caption listing of Plaintiffs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Caption listing of Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 II. JURISDICTION AND VENUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 III. PARTIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Plaintiffs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. The Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 IV. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 V. CLASS ACTION ALLEGATIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 VI. THE NAVY’S RELIGIOUS DEMOGRAPHICS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 VII. CHAPLAINS AS FAITH GROUP/DENOMINATIONAL REPRESENTATIVES.. . . . . . 25 VIII. OTHER STATUTES AFFECTING THIS LITIGATION. . . . . . . . . . . . . . . . . . . . . . . . 28 IX. THE NAVY’S ILLEGAL POLICIES AND ACTIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 COUNT 1
NAVY’S FAITH GROUP CATEGORY SYSTEM IS ARBITRARY, DISCRIMINATORY AND CONCEALS NAVY DENOMINATIONAL PREJUDICES IN VIOLATION OF THE FIRST AND FIFTH AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 COUNT 2 THE NAVY ESTABLISHED AND MAINTAINED AN UNCONSTITUTIONAL RELIGIOUS HIERARCHY AND PREFERENCE SYSTEM THROUGH ITS DENOMINATIONAL AND/OR FAITH GROUP CLUSTER GOALS AND/OR QUOTAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 A. Religious Favoritism and Preferences in Chaplain Accessions. . . . . . . . . 33
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B. Religious Preferences and Favoritism in Chaplain Recalls to Active Duty3.5
C. Religious Preferences and Favoritism in Chaplain Continuation on Active Duty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
E. Religious Preferences and Favoritism in Chaplain Retention. . . . . . . . . . 39
F. Religious Preferences and Favoritism in Chaplain Positions of Power.. . 40
COUNT 3 THE NAVY ESTABLISHED AND MAINTAINED AN UNCONSTITUTIONAL CHAPLAIN ACCESSION SYSTEM UNRELATED TO MEETING THE DEPARTMENT OF NAVY’S FREE EXERCISE NEEDS. . . . . . . . . . . . . . . . . 43
COUNT 4 THE NAVY’S PAST AND PRESENT CHAPLAIN SELECTION BOARD SYSTEMS VIOLATE THE FIRST AND FIFTH AMENDMENTS AND RFRA4.5
A. Common Characteristics of the Navy’s Unconstitutional Selection Board Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
B. The Navy’s CARE Board System and Its Procedures are Unconstitutional.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
D. Evidence of Religious Discrimination In Chaplain Promotions .. . . . . . . 55
E. The Navy’s Chaplain Active Duty Retention Advisory Group (CADRAG) or Similar Systems Is Unconstitutional. . . . . . . . . . . . . . . . . . . . . . . . . . . 57
COUNT 5 THE NAVY’S CHAPLAIN RECALL SYSTEM VIOLATES ITS OWN REGULATIONS, IS DISCRIMINATORY, PREFERENTIAL AND UNCONSTITUTIONAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
COUNT 6 ALLOWING CHAPLAINS TO RATE OTHER CHAPLAINS, EXCEPT IN EXCEPTIONAL CIRCUMSTANCES, VIOLATES THE FIRST AND FIFTH AMENDMENTS [DISMISSED].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
COUNT 7 THE NAVY HAS CREATED AN UNCONSTITUTIONAL CULTURE IN ITS CHAPLAIN CORPS CHARACTERIZED BY PERSISTENT AND OVERT HOSTILITY TO NON-LITURGICAL CHAPLAINS AND NAVY MEMBERS AND FAVORITISM TO LITURGICAL DENOMINATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
COUNT 8 THE NAVY’S HOSTILITY TO NON-LITURGICAL DENOMINATIONS AND
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Case 1:07-mc-00269-GK Document 134 Filed 10/03/12 Page 4 of 206
THEIR TRADITIONS HAS BURDENED PLAINTIFFS IN VIOLATION OF THE FIRST AND FIFTH AMENDMENTS AND RFRA. . . . . . . . . . . . . . . . . . 68
COUNT 9.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 THE NAVY DISCRIMINATES AGAINST NON-LITURGICAL CHAPLAINS’ RELIGIOUS FREE SPEECH. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
COUNT 10 THE NAVY’S HISTORIC POLICY OF PROMOTING ONLY A “GENERAL PROTESTANT” TYPE OF SERVICE AND RESTRICTING OTHER FORMS OF NON-LITURGICAL RELIGIOUS SERVICES VIOLATES THE FIRST AND FIFTH AMENDMENTS AND RFRA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
COUNT 11.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 CONSTRUCTIVE DISCHARGE OF CERTAIN PLAINTIFFS. . . . . . . . . . . . . 76
COUNT 12 ILLEGAL RETALIATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
COUNT 13 FRAUDULENT CONCEALMENT OF AND/OR ILLEGALLY COVERING UP THE EVIDENCE OF PLAINTIFFS’ CAUSES OF ACTION. . . . . . . . . . . . . . . 95
COUNT 14.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 VIOLATION OF THE RELIGIOUS FREEDOM RESTORATION ACT. . . . . 101
COUNT 15 A FORMER CHAPLAIN CORPS RECRUITING POLICY REQUIRING ALL CHAPLAINS TO ASSIST IN RECRUITING CHAPLAINS VIOLATED THE FIRST AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
COUNT 16 10 U.S.C. § 613(a) IS UNCONSTITUTIONAL AS APPLIED TO PLAINTIFFS’ CONSTITUTIONAL AND RFRA CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . 104
COUNT 17 [DISMISSED] FUNDING OF THE CHC’S ILLEGAL POLICIES, PRACTICES AND ACTIONS EXCEEDS CONGRESS’ AUTHORITY UNDER ARTICLE I, SECTION 8 OF THE CONSTITUTION’S TAXING AND SPENDING CLAU1S0E5.
COUNT 18 ENDORSING AGENCY SEPARATE CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . 107
X. PRAYER FOR RELIEF.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
c

Case 1:07-mc-00269-GK Document 134 Filed 10/03/12 Page 5 of 206 A. Declaratory Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 B. Injunctive Relief.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 C. Specific Declaratory and Injunctive Relief. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 D. Attorneys’ Fees and Other Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Exhibit List.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 ADDENDUM A: Individual Chaplains Plaintiff’s Names Alphabetically, Addresses and Claims ADDENDUM B – PLAINTIFF LIST BY CASE
d

Case 1:07-mc-00269-GK Document 134 Filed 10/03/12 Page 6 of 206

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

In re Navy Chaplaincy, aka
Navy Non-liturgical Chaplains,1 aka
The Chaplaincy of Full Gospel Churches,
and
The Associated Gospel Churches
and
Robert H. Adair (Adair) and
Rich L. Arnold (Gibson) and
Ray Allen Bailey (Gibson) and
Michael Belt, (Adair) and
William C. Blair (Adair) and
Rick P. Bradley (Gibson) and
George Philip Byrum,(Gibson) and
Andrew Calhoun (Gibson) and
Martha Carson (CFGC) and

) ) ) Case No. 07-mc-269 (GK) )
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1 The 65 individual chaplain plaintiffs in the three previously separate cases are identified herein with their original case.
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Greg DeMarco (Adair) and
Tim Demy (Gibson) and
Patrick T. Doney (Gibson) and
Joseph Dufour (Gibson) and
Floyd C. Ellison (Gibson) and
Larry Farrell (Adair) and
Alan Garner(Gibson) and
Dave Gibson (Gibson) and
John Gordy, (Gibson) and
Richard F. Hamme (Adair) and
Furniss Harkness (Adair) and
William Hatch (Gibson) and
Gary Heinke (Gibson) and
Robert L. Hendricks (Gibson) and
Frank Johnson (Gibson) and

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
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Case 1:07-mc-00269-GK Document 134 Filed 10/03/12 Page 8 of 206

Mark R. Johnston,(CFGC) and
Laurence W. Jones (Gibson) and
Samuel D. Kirk (Gibson) and
Klon Kitchen (CFGC) and
Frank S. Klapach (Gibson) and
Tom Klappert (Gibson) and
Jan C. Kohlmann (Gibson) and
Allen L. Lancaster (Gibson) and
Michael Lavelle (Adair) and
George W. Linzey (Adair) and
James Looby (Gibson) and
Manuel Mak (Gibson) and
Walker, Jr. Marsh (Gibson) and
Denise Y. Merritt (CFGC) and
David Mitchell (Gibson) and

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
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Jairo Moreno (Gibson) and
Timothy D. Nall, (Adair) and
Dan Nichols (Gibson) and
Rene` Porter-Stewart (Gibson) and
James V. Prince (Gibson) and
Duane Purser (CFGC) and
Rafael J. Quiles (Adair) and
Javier Roman (Gibson) and
Daniel E. Roysden (CFGC) and
Thomas Rush (Adair) and
Lloyd Scott (Gibson) and
Mary Helen Spalding (CFGC) and
Gary Stewart (Gibson) and
Lyle Swanson (Adair and
Fred A., Jr. Thompson (Gibson) and

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
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Case 1:07-mc-00269-GK Document 134 Filed 10/03/12 Page 10 of 206

Glenn Thyrion (Gibson) and
Armando Torralva (Gibson) and
Thomas Daniel Tostenson (Gibson and
James Twamley (Gibson) and
Thomas R. Watson (Gibson) and
James M. Weibling (Adair) and
David S. Wilder (Adair) and
Barby Wilson (CFGC) and
Wilson W. Wineman (Gibson) and
Michael A. Wright(Adair) and
Chris Xenakis (Gibson)
Plaintiffs,
v.
THE SECRETARY OF THE NAVY Room 4E686 - The Pentagon Washington, D.C. 20350-1000
and
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CASE NO. 07-mc-269 (GK)

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HE UNITED STATES NAVY

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Washington, D.C. 20530

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Defendants.

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__________________________________________)

IN RE NAVY CHAPLAINCY CONSOLIDATED COMPLAINT

I. INTRODUCTION

1. The Case and the Complaint.

a. This Complaint consolidates, in accord with the District Court’s July 25, 2012,

Case Management Order #1, the claims of three previously separate cases filed in the

District Court by three groups of Non-liturgical Navy chaplain plaintiffs at different times

and two chaplain endorsing agencies in their personal and representative capacities. The

Court previously consolidated all three cases into In re Navy Chaplaincy, 07mc269 (GK).

Those now closed cases are: Chaplaincy of Full Gospel Churches v. [the named

Secretary of the Navy], 99cv1945; Adair v. [the named Secretary of Navy], 00cv566; and

Gibson v. U.S. Navy, 06cv1696 (GK). The index provides a guide to its claims, facts and

relief.

b. This is a federal class action by Non-liturgical Navy chaplains challenging

religious preferences and discrimination in the U.S. Navy Chaplains Corps (the “CHC”)

in its accession, promotion, assignment, retention and separation systems and decision

making processes in violation of the First and Fifth Amendments and the Religious

Freedom Restoration Act (RFRA), 42 U.S.C. § 2000-bb, et seq, and 5 U.S.C. § 702. This

includes but is not limited to:

(i) the establishment of a denominational hierarchy system;

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(ii) the unconstitutional composition of CHC chaplain selection boards and their discriminatory practices;
(iii) the unconstitutional delegation to chaplain board members (denominational representatives) on statutory and non-statutory or administrative boards of discretionary civic authority to award, deny or terminate government benefits for other denominational representatives without guarantees the power is used only for secular, neutral and nonideological purposes;
(iv) the establishment of forbidden denominational preferences; (v) the establishment of arbitrary and illegal religious goals/quotas for Navy chaplain accessions, promotions and career opportunities; (vi) the establishment of a preferred religious tradition and a religious patronage system in the CHC; (vii) the practice of having the Chief of Chaplains (the “Chief”) or his Deputy serve as president of chaplain selection boards; and (viii) creation of a pervasive climate of bias, animosity and deceit toward plaintiffs and members of the class. c. This complaint contains the claims of two organizational plaintiffs, the Chaplaincy of Full Gospel Churches (“CFGC”) and the Associated Gospel Churches (“AGC”) on behalf of their individual members, applicants, and themselves as explained in 3.b below. Claims unique to one or both of these two chaplain endorsing agency plaintiffs are identified separately herein. d. Plaintiffs raise “as applied” constitutional challenges to: (i) 10 U.S.C. § 612 which requires selection boards contain at least one member
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of the category under consideration, here denominational representatives, because the Navy’s selection board procedures allow and facilitate denominational preferences and prejudice to influence the board decisions; and (ii) 10 U.S.C. § 613(a) which bars discovery of promotion board proceedings, thereby facilitating and concealing violations of the First and Fifth Amendments’ and RFRA Guarantees. e. The issues in this litigation involve legal and constitutional questions uniquely suited for judicial review and resolution, do not involve or require unique military expertise or judgment, do not involve judicial interference with military operations, and do not require exhaustion of administrative remedies as the issues arise from legal and constitutional challenges to Navy policies and/or practices under 10 U.S.C. §§ 628(i) and, 1558(g). f. The defendants’ voluntary cessation or modification of some of the policies and/or practices plaintiffs challenge herein does not moot plaintiffs’ claims; the defendants have not shown there is no probability of reinstituting those policies and/or practices. g. This Consolidated Complaint provides great detail and numerous example supporting plaintiffs’ claims reflecting the evidence accumulated in the over twelve years of litigation. The examples cited are examples only to provide specific notice of the type of harms challenged and do not limit or restrict other harms or damages that may be later claimed or discovered.
II. JURISDICTION AND VENUE 2. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1343, 1346; 10 U.S.C. §§ 628(i) and 1558(g); U.S.C. § 702 and 42 U.S.C. § 2000-bb. A declaration of the rights of these and
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other Navy Non-liturgical chaplains and the constitutionality of 10 U.S.C. §§ 612 and 613(a) as applied to chaplain promotion boards and various Navy and CHC practices or policies is sought pursuant to 28 U.S.C. §§ 2201 and 2202. Venue is appropriate under 28 U.S.C. § 1391(e) since the defendants are a federal agency and have offices and facilities located in Washington, D.C.
III. PARTIES A. Plaintiffs 3. Organizational Plaintiffs. a. Plaintiff CFGC is a Department of Defense (“DOD”) recognized endorsing agency2 for military chaplains of the Christian Charismatic tradition (hereafter “Charismatic”). It is incorporated in Texas and has no publicly traded stock. (i) CFGC brings this suit on behalf of itself and as a representative of all its Navy chaplains, both named and unnamed herein, past and present CFGC and charismatic Christian Navy personnel, its chaplain candidates, and the membership of the more than 60,000 churches and fellowships represented by CFGC (hereafter collectively the “CFGC Parties”). When CFGC filed suit in 1999, these churches had an established membership of over six and a half million. Affidavit of Rev. Dr. Jim Ammerman, CFGC Director (“Ammerman”),3 p. 5, ¶ 21 (Exhibit 1); see also 1999 Yearbook of American and Canadian Churches, p. 24 (hereafter “1999 Yearbook”) (describes CFGC). CFGC is
2 “Endorsement. The internal process that Religious Organizations use when designating RMPs [Religious Ministry Professionals-see ¶ E2.1.9] to represent their Religious Organizations to the Military Departments and confirm the ability of their RMPs to conduct religious observances or ceremonies in a military context.” DOD Instruction (DODI) 1304.28, ¶ E2.1.7 . 3 Rev. Dr. Ammerman died in May 2010 but his Affidavit and the details of its testimony are preserved in his deposition. His affidavit is used herein for simplicity and continuity with CFGC’s
original Complaint.
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located in Duncanville, Texas. (ii) The individual named CFGC plaintiff Navy chaplains identified in
Attachments A and B were unjustly injured by the Defendants’ challenged policies and prejudice toward CFGC and other illegal conduct.
(iii) CFGC challenges Navy and CHC policies and procedures which have frustrated its ability to fulfill the Department of Defense’s (DOD) objectives, originally stated in 32 C.F.R. § 65.3 but now provided in DOD Directive (DOD D) 1304.19, ¶ 4.14, to allow and facilitate the First Amendment right of charismatic Navy personnel to freely practice their religion by providing qualified charismatic chaplains. The challenged policies include but are not limited to: (a) until this and other chaplain lawsuits were filed, institutionalized denominational and/or faith group cluster accession and recruiting goals, objectives or quotas unrelated to the Navy’s free exercise needs, rewarding some religious traditions while penalizing CFGC; (b) institutionalized unlawful denominational prejudice in chaplain accession, promotion, retention and career opportunities against CFGC chaplains and those of other non-preferred religious groups based on their religious beliefs, practices and speech; (c) an established preferred religious hierarchy and/or religious tradition within the CHC; (d) condoning and supporting religious animosity and hostility to CFGC and military members from CFGC member churches; (e) denial of religious free exercise and free speech rights of CFGC chaplains and Navy personnel; (f) impermissibly burdening the religious exercise of CFGC chaplains and
4 “It is DOD policy that the Chaplaincies of the Military Departments: are established to advise and assist commanders in the discharge of their responsibilities to provide for the free exercise of religion in the context of military service as guaranteed by the Constitution, to assist commanders and managing Religious Affairs. DODD 1304.19, ¶ 4.1
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Navy personnel; (g) denying CFGC chaplains fair consideration in accessions, promotions and career opportunities in violation of the Fifth Amendment and DOD and Navy Equal Opportunity policies; (h) vetoing a proposed DOD faith group identification system that would have allowed charismatic and Pentecostal sailors and marines to identify them selves as associated with non-denominational churches and thereby allow their numbers to be counted in determining the faith group composition of the Navy; and (i) violating statutes and Navy regulations addressing equal opportunity, promotion procedures, chaplain utilization and freedom of worship. The defendants’ prejudice and challenged policies interfere with and invade CFGC’s organizational objectives and its protected and legitimate interests.
(iv) Each of the CFGC Parties has standing to sue in their own right. The interests which CFGC seeks to protect are germane to its purposes, Ammerman, at 9, ¶ 37 (Exhibit 1), and neither its claims nor the relief requested require the participation of individual CFGC Navy chaplains, Navy members of CFGC’s religious tradition or members of CFGC’s related churches.
(v) Analysis of Navy accessions from 1985-2005 shows CFGC’s Navy chaplain applicant approval rates are statistically significantly below that of Catholic and Liturgical Protestant denominations and many Non-liturgical denominations/faith groups. CFGC believes its low approval rate is a reflection of the CHC’s bias towards evangelical endorsers, evangelical churches and the individual chaplains endorsed by CFGC. The high rejection rate has injured CFGC financially and in its reputation and also mirrors the low promotion rates for their Navy chaplains.
(vi) CFGC endorsed 32 Navy chaplains from 1984-1999 when CFGC filed 11

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suit, but only 7 reached LCDR and none reached CDR. The normal promotion rate for these ranks is 80% to LCDR and 70% to CDR.
(vii) CFGC receives financial support from its chaplains; rejection results in a loss of CFGC’s resources expended in recruiting and processing applicants and requires additional expenditure of resources to recruit new candidates. The defendants’ prejudice interferes with and invades CFGC’s protected and legitimate interests. b. The Associated Gospel Churches (“AGC”) is a fellowship of non-denominational Christian, evangelical churches which has endorsed chaplains to the military services since 1943. It is incorporated in Pennsylvania but has no publically traded stock. Its offices are located at 209 Pine Knoll Drive, Suite B, Greenville, South Carolina.
(i) AGC brings suit on behalf of itself, its chaplain applicants and its Navy chaplains. Analysis of Navy accessions from 1985-2005 shows AGC’s Navy chaplain applicant approval rates are statistically significantly below that of Catholic and Liturgical Protestant denominations and many Non-liturgical denominations/faith groups. AGC believes its low accession approval rate, which statistically correlates with AGC’s low promotion rate, is a reflection of the CHC’s bias towards evangelical endorsers, evangelical churches and the individual chaplains endorsed by AGC. The high rejection rate and low promotion rate has injured AGC financially and in its reputation. The stories of AGC plaintiff chaplains illustrate the Navy’s prejudice toward AGC’s beliefs.
(ii) AGC has been forced to expend funds and effort attempting to protect its chaplains and resolve disputes between its chaplains and Liturgical command chaplains, e.g., a trip to Naples to assist CH Torralva. AGC receives financial support from its chaplains; rejection results in a loss of AGC’s resources expended in recruiting and
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processing applicants and requires additional expenditure of resources to recruit new candidates. The defendants’ prejudice interferes with and invades AGC’s protected and legitimate interests. c. Both CFGC and AGC specifically challenge the Navy’s (1) chaplain promotion system and procedures and (2) the CARE board system with its (i) use of chaplains as board members without accountability or objective standards, (ii) complete lack of objective criteria, (iii) lack of constitutional controls to prevent denominational or theological bias as factors in CARE board decisions, and (iv) the CHC’s ability to set arbitrary accession and/or recruiting goals by faith group or denomination which are not based on recognized or projected free exercise needs. 4. Individual Plaintiffs. The sixty-five individual chaplain plaintiffs in the three consolidated cases are listed alphabetically (with original case identified) and their individual stories and harms in Addendum A; they are listed by original case in Addendum B.
C. The Defendants 5. The Naval Defendants.
a. The United States Navy (the “Navy”) is a military department of the U.S. Armed Forces created by an Act of Congress. 10 U.S.C. § 5011 et seq. The Navy is organized into several branches or categories, i.e., subordinate groupings of individuals possessing similar qualifications or skills. One of these branches is the Navy Chaplain Corps, 10 U.S.C. § 5142, whose members are denominational representatives commissioned as officers because they possess specialized education, training and experience necessary to meet the free exercise needs of Department of Navy (“DON”) military personnel and their families. See DOD Instruction (“DODI”) 1304.28 and Secretary of Navy Instruction
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(“SECNAVINST”) 1730.7.C (defining chaplains as religious ministry professionals or “RMPs” endorsed by religious organizations to represent the religious organization to the military). See ¶ 21, infra. Its headquarters is in Washington D.C. b. The Secretary of the Navy (the “Secretary”) is sued only in his official capacity, as civilian head of the Navy, the co-defendant organization. His office is in the Department of Navy, headquartered in Washington, D.C.
IV. DEFINITIONS 6. The Navy divides most of its Christian personnel and chaplains into three general categories which it calls faith group clusters or categories (FGCs): Catholic, Liturgical Protestant, and Non-liturgical .5 These are terms commonly used by Navy chaplains and the last two terms have particular significance to this case and its issues. To assist the Court in understanding these terms, the following general definitions are provided:
a. At the time most of the events transpired which form the basis for this action, the category “Catholic” referred to only those chaplains of the Roman Catholic denomination. The CHC places Catholic-like denominations which identify themselves as Catholic in the Special Worship category; b. Navy chaplains use “Liturgical Protestant” to collectively describe those Christian denominations which (1) use a set liturgy or order of worship6 in their services, (2)
5 The Navy uses the term “Special Worship” to categorize and denote a small number of Christian and non-Christian faith groups which have unique or special needs for their worship and religious practices. This includes, Jewish, Orthodox, Seventh Day Adventist, Christian Science, Latter Day Saints (Mormons), Muslims, Hindu and Unitarian who comprise about 2-3% of DON and 5% of CHC. 6 Almost every church has some “order” to its worship, but for these Protestant denominations there is no worship service without the prescribed liturgy. There may be other
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baptize infants, (3) whose clergy wear special religious apparel, (4) follow a liturgical calender with specific scriptural readings by date for their services, and (5) recognize “sacraments.” This primarily includes those traditions or denominations that began during the Protestant Reformation and retained an established liturgy in their worship services such as the Lutheran, Reformed and Episcopal denominations, and the denominations which later evolved from them, e.g., Presbyterian and Methodist. Navy chaplains sometimes refer to these liturgical denominations as "baby baptizers" since infant baptism is a common feature of these liturgical denominations. They are also referred to as “high church” or “main line churches.” As used herein, “Liturgical Protestant” will mean chaplains of the Lutheran, Episcopal, Methodist, Methodist Episcopal, United Church of Christ, Congregational, Reformed and Presbyterian denominations7; the term “Liturgical” without further description will refer to both Catholic and Liturgical Protestants who share a common liturgical history and baptize infants. c. “Non-liturgical” refers to those Christian denominations or faith groups without a formal liturgy or order in their worship service. In general, they baptize only adults or children who have reached the age of reason, their clergy do not usually wear vestments
Liturgical Protestant denominations, but the ones identified here commonly recognized as such by the Navy, are the largest and most well known. 7 Although the Orthodox denominations met all the characteristics for Liturgical Protestants, i.e., a fixed liturgy, clergy wear vestments, follow a lectionary and baptize babies, the Navy has historically treated Orthodox churches, e.g., Orthodox Church in America, Greek Orthodox, as Special Worship. This complaint places the Orthodox churches in the Special Worship category to minimize differences in categorizations and because the Navy treats them as Special Worship, not as Liturgical Protestant.
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or special religious dress during services, and they emphasize preaching from the Bible in worship services. Some Navy chaplains refer to these faith groups as “low church.” Baptist, Evangelical, Bible Church, Pentecostal, Charismatic and Christian Churches/Disciples of Christ faith groups or churches fall into the Non-liturgical category. Although these faith groups see their tradition and beliefs arising from first century Christianity rather than the Protestant Reformation, the Navy often refers to these faith groups as “Non-liturgical Protestant.” Plaintiffs belong to this category and represent Baptist, Evangelical, Full Gospel and Bible churches, Pentecostal and other Non-liturgical faith groups.
Some plaintiffs belong to denominations that allow their clergy to wear vestments or allow individual churches to baptize infants. However, they emphasize Bible preaching rather than liturgy, and the Navy has treated them as Non-liturgicals.
The Navy’s categorization of “Non-liturgical” as a FGC implies a similarity of worship practices and theology among its many different faith groups. This is incorrect because many of the Non-liturgical faith groups have sharp and serious differences in theology and reject the beliefs and worship practices of others within this FGC, e.g., some Non-liturgical faith groups are hostile to charismatic or pentecostal worship practices and beliefs. This complaint challenges this “one-size-fits-all” approach and practice because it ignores differences and limitations, masks discrimination and allows the Navy to ignore its constitutional responsibility to provide for the free exercise of all faith groups. d. Other Definitions/Abbreviations: Billet - an authorized position for Naval personnel at a specific location or unit CHC - Navy Chaplain Corps
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FOS - Failure of Selection - being considered for promotion but not selected. LT - Lieutenant LCDR - Lieutenant Commander CDR - Commander CAPT - Captain RADM - Rear Admiral Career Grades - the ranks (pay grades) of LCDR (O-4), CDR (O-5) and CAPT (O-6)
whose active duty numbers are controlled by Congress. DON - Department of Navy (includes the Navy and the Marines) NIG - Navy Inspector General DODIG - Department of Defense Inspector General Precept - the Secretary of Navy’s instructions to Navy selection boards SER - selective early retirement - a statutory procedure to reduce officer strengths
allowing the Secretary to convene boards to select officers for involuntary retirement who have the necessary time in service to qualify for retirement
V. CLASS ACTION ALLEGATIONS 7. Plaintiffs bring this action on their own behalf and as a class action as representative parties on behalf of all members of the class under the provisions of Federal Rules of Civil Procedure 23(a) and 23(b) for declaratory and injunctive relief, and relief incident to and subordinate to such relief, including costs and attorney fees. A class action is appropriate because, as shown below: (a) the class is so numerous that joinder of all members is impracticable, (b) there are questions of law and fact common to the class, (c) the claims of the plaintiffs are typical of the claims of the class, and (d) the representative parties will fairly and
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adequately protect the interests of the class. 8. Definition of the Class. The class represented by plaintiffs in this action, and of which plaintiffs are themselves members, consists of present and former Non-liturgical Navy chaplains, active duty and Reserve, who served in the Navy when the Navy began placing two Catholic chaplains as selection board members on every career grade chaplain selection or promotion board (the “2RC Policy”), in 1976,8 to the present. It includes those Non-liturgical chaplains whose active duty and/or Reserve careers have been terminated or otherwise adversely affected by the Navy’s and the CHC’s unlawful bias and prejudice against Non-liturgical chaplains, including the Navy’s reserving selection board memberships solely for Catholics from 1976 to 2002, its use of illegal denominational goals/quotas in promotion and retention decisions, and the other continuing violations of the Constitution, statues and regulations as described herein. It also includes those members of the class who have not yet personally suffered career injury as a result of the practices and policies challenged here because manifestation of the injury has been delayed, e.g., prejudiced by adverse fitness reports but the injury has not yet manifested itself, or may be subject to the defendants’ arbitrary religious discrimination or hostility now or in the future. 9. As a further explanation, the class includes those Non-liturgical chaplains who, because of the Navy’s illegal board composition, illegal denominational goals or quota system and/or denominational bias against their faith group, denomination or Non-liturgical tradition: (a) were
8 The 2RC Policy began in or before 1976 when RADM J. J. O’Connor, a Catholic, was Chief of Chaplains (July 1975 to June 1979). See list of Chief of Chaplains, Exhibit 2. Plaintiffs reserve the right to further amend their Complaint if discovery shows the 2RC Policy actually began earlier. The 2 RC Policy ended in 1986 after Navy CH LT Ronald Wilkins successfully challenged the policy by obtaining an injunction enjoining his discharge for FOS, Wilkins v. Lehman, 85-cv3031 slip op. (S.D.Cal. 1986) (Exhibit 3).
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FOS while on active duty or in the Reserve and who are still on active duty or in the Reserve, who left the Navy voluntarily, or were involuntarily separated from the Navy based on their FOS; (b) were FOS while on active duty but were or are in the Reserves; (c) were forced to retire as the result of SER boards or under the Temporary Early Retirement Act (TERA); (d) may suffer prejudice as active duty Non-liturgical chaplains due to the Navy’s policies challenged herein unless the Navy is restrained from continuing those actions and policies; (e) saw or experienced the Navy’s Non-liturgical bias and left active duty rather than endure that bias and prejudice, including those who retired early under TERA; (f) suffered adverse fitness reports (i) because of religious and/or denominational prejudice or (ii) they insisted on practicing the tenets or traditions of their Non-liturgical faith which the CHC hierarchy disapproved; (g) were not continued on active duty past their initial tour as a result of active duty continuation or Chaplain Accession and Recall Evaluation (“CARE”) boards or similar procedures; and (h) were subject to the same bias in the Reserve promotion system and/or assignment of pay billets. The preceding examples are representative illustrations only and do not include all the examples of prejudice or harm caused by the Navy’s illegal prejudicial conduct and bias. 10. The exact number of the class identified above is not known, but it is estimated that there are at least 1200 members.9 The class is so numerous that joinder of individual members in this action is impractical. 11. There are common questions of law and fact involved in this action that affect the rights of each member of the class and the relief sought is common to the entire class, namely:
a. A long and continuing pattern of violations of the First and Fifth Amendments
9 Plaintiffs conservatively estimate that approximately 1200 Non-liturgical chaplains were on active duty - including Reservists brings the potential class to 1400-1600. Defendants possess the necessary records and information to identify and quantify the class.
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and RFRA including: (i) a chaplain promotion and selection board system that: (a) reserved at least one board seat for a Catholic chaplain from at least FY77-02; (b) used selection boards dominated by Liturgical chaplain board members personally selected or approved by the Chief of Chaplains (the “Chief”) or his Deputy to select other chaplains for promotion, retention and separation; (c) use a small number of board members who vote in secret without accountability, allowing one member to ruin a chaplain’s career by voting zero; (d) allow the Chief or his Deputy to act as board president; (e) delegate civic power to award or deny government benefits to denominational representatives with no guarantees the power will be used for neutral, secular and non-ideological purposes; (i) the establishment of arbitrary and discriminatory fGCs which facilitate and hide prejudice and illegal religious quotas for chaplain accessions, promotions, continuation on active duty and selective early retirement (“SER”); (ii) the establishment of a preferred religious tradition with unconstitutional discrimination and hostility on religious grounds against Non-liturgical chaplains and Non-liturgical Navy personnel; 20

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(iii) the establishment of a religious patronage system and a culture of denominational favoritism and prejudice; (iv) the illegal use of the SER process to separate Non-liturgical chaplains based on their religious beliefs and speech; (v) the establishment of accession goals unrelated to the DON’s free exercise needs; and (vi) the use of chaplain dominated selection and accession boards with no protections or constitutional guarantees religious or personal bias cannot influence the outcome. b. The violation of Non-liturgical chaplains’ First Amendment rights of nonEstablishment, Free Speech, Free Exercise and Right to Petition. c. The violation of Non-liturgical chaplains’ Fifth Amendment right to equal treatment and opportunity and other statutes, including 42 U.S.C. § 1981, the RFRA, 42 U.S.C. § 2000bb, and Department of Defense and Navy regulations. 12. The claims of the plaintiffs, who are representatives of the class are typical of the class’s claims in that the claims of all members of the class, including plaintiffs, depend on a showing of the acts and omissions of defendants giving rise to the right of Plaintiffs to the relief sought. There is no conflict between any individual named plaintiff and other members of the class with respect to this action, or with respect to the claims for relief set forth in this complaint. The class has similar injuries flowing from the Navy’s systematic and intentional religious prejudice. 13. The named plaintiffs are the representative parties for the class, and are able to, and will, fairly and adequately protect the interests of the class. The plaintiffs’ identification in ¶ 3 show they adequately represent the various statuses of the class, i.e., active, reserve, retired, separated.
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The attorney for plaintiffs, Arthur A. Schulcz, Sr., will actively conduct and be responsible for
Plaintiffs’ case.
14. This class action is maintainable under Fed. Rule of Civil Procedure (the “Rules”) 23(b)
because it satisfies the prerequisites of Rule 23 (a) and the following conditions of Rule 23(b):
(1) the prosecution of separate actions by individual members of the class would create a risk of
(A) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the defendants, all of whom oppose the class, or
(B) adjudications with respect to individual members of the class which would, as a practical matter, be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted and refused to act on grounds generally applicable to the class, as more specifically alleged below, on grounds which are generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole which this action seeks; or (3) *** the questions of law and fact common to the members of the class predominate over any questions affecting individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
15. The findings required by Rule 23(b)(1) and (2) are supported by the fact there is a large
class of Non-liturgical chaplains against whom the Navy has operated in a systematic
discriminatory manner, violating the Constitution, the Navy’s own regulations, and promotion
and equal opportunity policies. The declaratory and injunctive relief sought will affect all persons
who have experienced the alleged discrimination. The findings required by Rule 23(b)(3) are
supported by fact that the constitutional and federal questions raised by plaintiffs dominate this
action and apply to all members of the class. If plaintiffs are successful, any individual relief that
is incidental to this action will be determined by statute and require little if any involvement by
the Court. Additional considerations:
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a. The cost of pursuing individual relief would seem to preclude individual actions as evidenced by the almost complete lack of individual actions in this area. b. This is the fifth action challenging the Navy Chaplain Corps’ policies and procedures. The first action, Wilkins v. U.S.A., was brought by an individual chaplain in the U.S. District Court in San Diego, CA in July 1999. The second action, Sturm v. Danzig, was also brought in the U.S. District Court in San Diego in October 1999 by an active duty chaplain raising many of the same issues as in this case; it was dismissed as moot after CH Sturm was promoted to LCDR. The third action, Chaplaincy of Full Gospel Churches v. Danzig (now Mabus) (“CFGC”), was filed in this Court November 5, 1999. Chaplaincy of Full Gospel Churches (“CFGC”), a recognized DOD endorsing agency, brought suit on behalf of itself and as a representative of its active duty chaplains and Navy members of its faith group churches; eight CFGC chaplains joined as plaintiffs. CFGC raises many of the same issues here but is limited to CFGC endorsed Navy chaplains. The fourth action, Adair v. Winter, was filed in the District Court for the District of Columbia March 17, 2000. See ¶ 4 supra. c. There are no extraordinary difficulties in the management of this class action. There are no state law issues and this type of action is analogous to civil rights actions which are often resolved in a class action. d. The issues here are primarily constitutional and statutory which involve no exercise of military discretion or expertise.
VI. THE NAVY’S RELIGIOUS DEMOGRAPHICS 16. The DOD records religious preference data for the individual service members. A 7/8/98 Report by the Defense Manpower Data Center (hereafter “DMDC”) attached at Exhibit 4,
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provided a factual religious demographic background against which to measure plaintiffs’ allegations and the reasonableness of the Navy’s actions and policies.
a. Enlisted religious preference data is recorded at the time of enlistment on a block on the DD Form 4, Enlistment Form. b. When the CFGC and Adair Complaints were filed in 1999 and 2000, only the Navy did not provide its officer religious preferences to DMDC. Given the availability of this data in the Navy Officer Master Files, the failure to provide this data to DMDC was a conscious decision on the part of the Navy. Plaintiffs believe this omission was deliberate to hide the large number of Catholic officers, especially at the higher ranks. 17. The DMDC data shows that, when CFGC and Adair were filed, the actual Navy membership of the Liturgical Protestant denominations at issue here represent about 8% of all DON active duty personnel, or about 11% of those who profess faith.10 Specifically, in 1998 those of various Methodist named or affiliated denominations, i.e., those who have Methodist or Asbury in their name, represented approximately 3.78% (20,776) of all DON personnel (549,800); Presbyterian related denominations represented 1.05% (5,781); the various Lutheran denominations represent 2.90% (15,937); Episcopal and Reformed Episcopal represented 0.73% (4,039); Methodist Episcopal represented 0.2 % (402); Reformed churches represented 0.1% (288); Orthodox represented 0.1% (256); a Liturgical Protestant total of approximately 8.76%. In the February 2000 report, this total had decreased to 8.03%. 18. Catholics, a major liturgical denomination, represented 24.09% (132,429) of the total DON personnel in 1998 and 23.56% (125,892) in 2000. Of total DON personnel identifying a faith, Catholics represented about one-third, 32.85% in 1998 and 31.59% in February 2002. 10 About 1/3 of Department of Navy personnel identify no faith.
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19. Identified Non-liturgical faith groups currently represent about 53% of the Navy religious population identifying a faith. The DON religious demographics based on the DMDC data for 1998-2001 and 2006 (when Gibson was filed) which includes DON officer preferences are shown at Exhibit 5.
VII. CHAPLAINS AS FAITH GROUP/DENOMINATIONAL REPRESENTATIVES 20. DODI 1304.28 implements the policies of DOD Directive (“DODD”) 1304.19 (“The Appointment of Chaplains for the Military Departments”) and defines chaplains as “religious ministry professionals” (RMPs): “an individual endorsed to represent a Religious Organization and to conduct its religious observances. An RMP is a fully qualified member of the clergy ....” Id., ¶E2.1.9.
a. 1304.28 further defines “endorsement” as “the internal process religious organizations use when designating RMPs to represent their religious organizations to the Military Departments, confirming the ability of their RMPs to conduct religious observances or ceremonies in a military context.” Id. ¶E2.1.7 (emphasis added). See also In re England, 375 F.3d 1169, 1171 (D.C. Cir. 2004), cert denied, U.S. (2005) [citations omitted] (noting the “unique” role of chaplains “involving simultaneous service as clergy or a ‘professional representative’ of a particular denomination and as a commissioned officer.”). b. In Rigdon v. Perry, 962 F.Supp. 150 (D.D.C. 1997), the executive director of the Armed Forces Chaplain Board submitted a declaration on behalf of the military defendants and DOD stating that chaplains were faith group representatives who remained accountable to their faith group community and who had “rank without command.”
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21. DODD 1304.19, ¶4, “Policy,” states chaplaincies of the Military Departments “are established to advise and assist commanders in the discharge of their responsibilities to provide for the free exercise of religion ... to assist commanders in managing religious affairs (DOD Directive 1500.73) (E)) and to serve as the principal advisers to commanders for all issues regarding the impact of religion on military operations.” DOD’s definition of the chaplain’s role, “to advise” and “to assist”, shows DOD’s intent to preclude chaplains’ opportunities to exercise the sovereign’s authority in any significant way, avoiding the appearance of “fusion” between religion and the government. 22. The DOD’s 1987 “Study of Representation of Religious Faiths in the Armed Forces” (“DOD Study”) identified and analyzed tasks performed by military chaplains.
a. “Each service indicated that a substantial majority of a chaplain’s time is spent in tasks that are clearly religious in nature, such as conducting religious services, education, and pastoral counseling. The high percentage of time spent in these areas is to be expected, for they are primary to the chaplain’s role as a cleric in the military.” Id. at I12 (emphasis added). b. Considering whether “pastoral counseling” was secular or religious, DOD reported: “From the perspective of this study, pastoral counseling is considered a religious activity. Pastoral counseling centers on the spiritual dimension, whether it involves crisis intervention, dealing with situational maladjustments, the management of stress, or caring for the bereaved and the victims of trauma.” Id. c. “Because of their roles as religious leaders, chaplains are sought after and become deeply involved in such programs as control of substance abuse, marriage enrichment, ethics and moral development, interpersonal relationships, and leadership.” Id. at I-13.
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d. “The administrative tasks, while secular in nature, are primarily associated with the management of ministerial activities within the military system.” Id. e. “In conclusion, the highest percentage of a chaplain’s time is devoted to specific religious activities, and even those activities not clearly identified as religious in nature, are related to the execution of pastoral ministry.” Id. at 14. 23. SECNAVINST 1730.7B, Subj: RELIGIOUS MINISTRY SUPPORT WITHIN THE DEPARTMENT OF THE NAVY, ¶ 4, specifically defined chaplains as “professional clergy of a certifying faith group who provide for the free exercise of religion for all members of the Department of the Navy” and defined their duties to “advise commands in matters of morale, morals, and spiritual well being.” 24. SECNAVINST 1730.7B, the operable regulation11, clearly and severely limits those chaplain duties to “ministry support”, i.e., “religious activities.” In accordance with Article 1063 of [Navy Regulations, 1990], chaplains shall be detailed or permitted to perform only such duties as are related to ministry support. Chaplains shall not bear arms. Chaplains shall not be assigned collateral duties which violate the religious practices of the chaplain’s faith group, require services as director, solicitor, or treasurer of funds other than administrator of a Religious Offering Fund, serve on a court-martial or stand watches other that of duty chaplain. ¶ 4 (emphasis added). 25. OPNAVINST 1730.1D of 06 May 2003, Subj: RELIGIOUS MINISTRY IN THE NAVY, page 9, section (11), parallels this restriction: Chaplains shall not be assigned duties that violate noncombatant status or the religious practices of the chaplain’s religious organization, undermine privileged communication, as defined in reference (m), or involve the management of funds
11 On February 21, 2006 the Secretary issued 1730.7C which mirrored and did not change the relevant portions of 1730.7B, or its predecessor, 1730.7A. Congress directed the Navy withdraw 1730.7C because it limited chaplains’ religious speech when praying. 27

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other than the ROF. Chaplains shall not be assigned to serve as a member of a court-martial or on a Family Advocacy Program Case Review Committee; coordinate or advocate in the Sexual Assault Victim Intervention program; act as treasurer, director, or solicitor of non-ROF funds; stand watches other than those of Duty Chaplain; or participate in any activity directly prohibited by approved international conventions defining the status of noncombatant. 26. 10 U.S.C. § 647 requires a chaplain be separated (as a chaplain) if he loses his endorsement. He may be retained if he obtains another endorsement.
VIII. OTHER STATUTES AFFECTING THIS LITIGATION 27. 10 U.S.C. § 612 requires selection boards to be composed of a minimum of five officers, one of whom should be from the category under selection. 28. A chaplain’s second FOS before reaching the rank of CDR can result in involuntary separation form the Navy. 10 U.S.C. § 632.
IX. THE NAVY’S ILLEGAL POLICIES AND ACTIONS COUNT 1
NAVY’S FAITH GROUP CATEGORY SYSTEM IS ARBITRARY, DISCRIMINATORY AND CONCEALS NAVY DENOMINATIONAL PREJUDICES IN VIOLATION OF THE
FIRST AND FIFTH AMENDMENTS 29. The allegations of paragraphs 1 through 28 above are incorporated herein by reference as though pleaded in full. 30. In the late 1960s and 1970s, America’s religious demographics began a large, steady and measurable shift away from Liturgical Protestant denominations to Non-liturgical churches, to which plaintiffs and the class belong. This trend continues today. 31. Until approximately mid-1986, the allocation of authorized Navy chaplains among the various faith groups was based on objective criteria, the relative percentage a faith group or denomination represented in the total American religious population as reported in sources such
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as the annual Yearbook of American and Canadian Churches. For example, if there were 100 Navy chaplains authorized and Catholics made up 25% of the American religious population and Baptists made up 20%, the Navy would try to have 25 Catholic and 20 Baptist chaplains. See Exhibit 6- formula for computing accession goals; Affidavit of CAPT Larry Ellis, CHC, USN, Exhibit 7, ¶ 7. 32. Faced with shrinking Liturgical Protestant faith group membership, a growing Nonliturgical population and the implications for Navy chaplain faith group authorizations, the Navy abandoned its “objective” criteria (linking faith group membership with chaplain authorizations) around 1986 and replaced it with the amorphous, subjective “Thirds Policy” described below. 33. A 7/31/86 Memo from CAPT Muchow (later Chief of Chaplains) to the Chief, “Subj: Revised Fiscal Year 87 Accession Plan” (Exhibit 8), explained and implemented the “Thirds Policy.” It divided chaplain end-strength allocations among three religious groupings made up of faith group clusters or categories (“FGC”): Liturgical Protestant faith groups received 35%, Nonliturgical faith groups received 35%, and “Others”constituted the remaining 30%, of which 25% were to be Catholic. In other words, the CHC reserved 35% of Navy chaplain promotions, retentions on active duty and accessions for Liturgical Protestant chaplains, a FGC that represented less than 12% of the identified religious needs of the Navy, in contrast to the Nonliturgical free exercise needs which were approximately four times the Liturgical Protestants. 34. The CHC’s October 1999 “Study on Religious Affiliation in DON”, Exhibit 9, admitted “The Navy Chaplain Corps has never conducted an in-depth study of the religions affiliation of members in the Navy and Marine Corps.” Id. at 2 (cover page not counted in original) (produced in Larsen v. U.S. Navy, LAR 0360). 35. The Thirds Policy created a denominational barrier allowing Liturgical Protestant (35%)
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and Catholic (25%) chaplains, i.e., the liturgical traditions, to shape the CHC , establish a denominational hierarchy, and maintain control of the CHC while excluding Non-liturgical chaplains from real influence and representation.
a. No Navy document or witness has explained the rationale or logic behind the Thirds Policy’s FGC percentages or how FGC recruiting goals or end strengths from FY87-00 were computed. b. The Navy continued to emphasize recruiting Liturgical Protestant chaplains despite those faith groups shrinking memberships. See Exhibit 8, Accession goals FY882001. In some years the Liturgical Protestant accession goal was twice that of Nonliturgicals. The total accession goals over the 13 year period show the Thirds Policy for accessions had morphed into one-third each for Catholic, Liturgical Protestants, and the remaining one-third for Non-liturgicals and Special Worship. c. Five Year End Strength plans show the CHC’s consistent attempts to increase the Liturgical Protestant percentage of the CHC and decrease Non-liturgical percentages below the Liturgical Protestant FGC. 36. The Navy’s categorization of FGCs in general and of “Non-Liturgical Protestant” in particular is arbitrary, capricious and masks discrimination against the Non-liturgical FGC’s more religiously conservative members. a. Catholic is a single FGC but it represents only a single denomination. Other “catholic” groups whose liturgy and history are similar, who share the same sacraments, e.g., Orthodox, Liberal Catholic, are not included. The only difference between these “catholic” groups is they reject the authority of the Pope. However, the rejection of one group’s authority by others is common to Protestant denominations and all other
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religions. b. The denominations in the Liturgical Protestant FGC have similarities in terms of a common origin, historical doctrine, sacraments and liturgy. c. In contrast to the relative homogeneity of the Liturgical Protestant and monolithic Catholic FGCs, the Non-liturgical FGC represents a wide spectrum of religious perspectives and worship practices, many of which are rejected by some groups within the FGC, e.g., some faith groups reject pentecostal practices. See Declaration of CAPT James Poe, CHC, USN (Ret.) (“Poe”), Regional Chaplain, Naval Region Europe ¶¶ 10-12 (Exhibit 10). d. Despite significant differences, the CHC treats all Non-liturgicals as fungible. Plaintiff Dufour pastored the Naples Non-liturgical contemporary Protestant worship service in which contemporary music and musicians were important parts. The Catholic command chaplain planned to replace CH Dufour with a Non-liturgical chaplain whose faith group did not allow using musical instruments in worship. Poe, ¶¶ 17-19. 37. The Non-liturgical FGC classification facilitates religious favoritism for the Navy’s preferred denominations and hides the CHC’s bias against the Non-liturgical faith groups (and other conservative liturgical faith groups) in accessions, promotions, career opportunities , assignments, and retentions as shown in Counts 3 and 5 and other places herein. 38. The FGC categories are arbitrary, fail strict scrutiny because they serve no legitimate compelling secular or neutral purpose, and were and are not narrowly tailored to do so, and any Establishment Clause test and violate the Fifth Amendment. 39. This claim is common to all plaintiffs and class members.
COUNT 2 31

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THE NAVY ESTABLISHED AND MAINTAINED AN UNCONSTITUTIONAL RELIGIOUS HIERARCHY AND PREFERENCE SYSTEM THROUGH ITS
DENOMINATIONAL AND/OR FAITH GROUP CLUSTER GOALS AND/OR QUOTAS 40. The allegations of paragraphs 1 through 39 above are incorporated herein by reference as though pleaded in full. 41. The Navy’s unlawful religious quota system described above favors Catholic and Liturgical Protestant chaplains in promotions, retention, and career opportunities while Nonliturgical chaplains are denied these same benefits and rewards of military service. 42. A statistical examination of the CHC’s practices and policies by the CFGC/Adair plaintiffs’ expert found: (a) “Every dimension of personnel management which can be illuminated with data shows that Non-liturgical chaplains are disadvantaged by the CHC’ policies and practices of religious preference....”, Compendium Declaration of Dr. Harald R. Leuba, Ph.D. (the “Compendium”), at 16, ¶8, 13 to In re Chaplaincy Doc. No. 21, incorporated by reference; and (b) Dr. Leuba ‘s further analysis concluded:
The inescapable conclusion is that U.S. Navy Chaplain Corps’ personnel decisions are contaminated by considerations of denomination. There is an institutional preference among denominations (Catholic > Episcopal > other Liturgical > Baptist > other Non Liturgical > Orthodox and Special Worship) and this preference priority forms the basis for populating the selection boards; that pattern of preference in turn controls the mix of denominations which are selected into, promoted within, or involuntarily retired from the U.S. Navy Chaplain Corps. The favored denominations receive disproportionate benefit; the disfavored ones are denied unbiased and equitable consideration for admission, advancement, and tenure.” Dr. Leuba’s Allonge Declaration ¶6 (Exhibit 11). 43. The Thirds Policy was applied to accessions, influenced promotions, controlled retention and selective early retirements resulting in the illegal preferences shown above and the creation of distinct hierarchies of preferred denominations in the Navy.
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A. Religious Favoritism and Preferences in Chaplain Accessions 44. To implement its Thirds Policy, the Navy rejected otherwise qualified Non-liturgical chaplain candidates, including CFGC and AGC candidates, because of CHC bias against their faith group’s beliefs, traditions and worship practices.
a. The Thirds Policy was implemented by two distinct mechanisms, (i) the Navy’s uncontrolled ability to establish arbitrary FGC accession goals unrelated to Department of Navy ( “DON”) free exercise needs and (ii) the CARE Board process which uses chaplains to evaluate other faith groups candidates for appointment as chaplains with no objective criteria. Because more Non-liturgicals applied than Liturgicals, the CARE board process was necessary to conform the applicant selections to the Thirds Policy. b Although Non-liturgical faith groups provided the largest FGC group of Navy chaplain candidates from 1985 to 2005, their FGC acceptance rate was 70.39% compared with the Catholic accession rate of 94% and Liturgical Protestant rate of 82.5%. c. The Navy has three accession programs for chaplains: the Chaplain Candidate Program (“CCP”) (or Theological Student Program); the D4105-A, which takes civilian clergy and commissions them directly to active duty; and D1405-I , which commissions civilian clergy into the inactive Naval Reserve. d. Statistical analysis of FGC accession rates from 1985 to 2005 for all chaplain accession programs shows a consistent pattern of preference for Roman Catholics (“RC”), followed by Liturgical Protestants (“LP”) and in two of the three programs, Special Worship (“SW”) followed by Non-liturgical (“NL”) faith groups.
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Program CCP D4105-A D4105-I

RC 95.0% 92.4% 96.3%

LP 82.5% 77.0% 77.3%

NL 75.6% 65.7% 60.7%

SW 88.8% 61.4% 75.0%

Source: Tables 1 (CCP), 7 (D4105-A), and 8 (D4105-I), from Larson v. U.S. Navy, No. 02-cv2005 Exhibit 28 to Doc. No. 48., September 2006 Withdrawal & Correction Declaration Denominational Preference in the U.S. Navy Chaplain Corps Accessions, Expert Declaration of Harald R. Leuba, Ph.D., (the “W&C”), incorporated by reference.
e. FGC active duty acceptance rates from 1985 to 2005 for officers who completed
the CCP, the S4105 program, show the same consistent pattern of preference. Non-
liturgical (“NL”) faith groups are last again.

Program S4105-A

RC 100%

LP 94.0%

NL 76.8%

SW 91.3%

Id., Table 3 (S4105-A).

f.

There are wide variations in the faith group accession rates within the Non-

liturgical FGC. AGC and CFGC, which supplied the second largest number of Non-

liturgical candidates, have some of the lowest accession rates, 1998-2005 Non-liturgical

Accession, Table QE-6 from Larson v. U.S. Navy, W&C, pp. 149-150 (Exhibit 12);

g. The wide variation in the FGC accession rates is due to the Navy’s use of a set of

favored denominations for its CARE Board memberships who tended to approve those

most like themselves and reject or limit those not like themselves.

The Navy’s Implicit Favorites:

Percent Recommended

for Accession*

Tier I Roman Catholic

- There was at least one Roman Catholic on most CARE Panels

96.40%

Tier II SB, ELCA, UM , LMS, NBCUS, BGC, ABC, CS & SDA

85.45 %

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- Significant representation on CARE Advisory Group

Tier III EC, AME, PNBC, RCA, etc

79.71 %

- Minimal or No representation on CARE Advisory Group

* Data from Navy’s electronic data base, 27 July 2006

Source: The Siskin Conjecture, ¶ 63, Exhibit 15 to In re Navy Chaplaincy, Doc. No. 21 (Rule 54

Motion), incorporated by reference.

h. Statistical analysis of board memberships and board decisions shows the CHC

treated Baptists more favorably than non-Baptist Non-liturgicals (“NBNL”).

45. Examination of every accession program from 1986 to 2005 shows the same CHC

denominational hierarchy and preferences in violation of the First and Fifth Amendments and

RFRA.

B. Religious Preferences and Favoritism in Chaplain Recalls to Active Duty

46. In addition to chaplain accession goals favoring Liturgical Protestants, the Navy’s

Reserve chaplain recall policy has demonstrated an illegal preference for Catholics and Liturgical

Protestants, which has supported the Thirds Policy’s objectives.

a. In violation of its own policy and regulations, the Navy has brought senior ranking

liturgical chaplains to active duty from the Naval Reserve who reduce the available

promotion opportunities, then compete for promotions at the next higher level and are

selected for promotions without serving the necessary time in the difficult tours and

demanding assignments the Navy requires for Non-liturgical chaplains to be competitive

for promotion, e.g., CAPTs Rock (RC), Vierra (UCC), Anderson (RC). See Count 5.

b. Whereas Non-liturgical chaplains who left active duty and were promoted to

LCDR in the Reserves had to give up their rank to return to active duty, Catholic and

Liturgical Protestant chaplains were allowed to return to active duty and keep the rank

above LT obtained in the Reserves.

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c. In September 2001 the Navy brought CDR John Lyle, a Catholic reservist, to active duty. The Navy first placed him on temporary duty for 208 days, a violation of the Joint Travel Regulation which limits temporary duty to 180 days, and disguised his illegal recall by recalling him as a flight surgeon. Exhibit 13. C. Religious Preferences and Favoritism in Chaplain Continuation on Active Duty 47. The goal of the unconstitutional Thirds Policy12 was further implemented by a deliberate, systematic, discriminatory Navy retention policy whose purpose was to keep Non-liturgical chaplains from continuing on active duty beyond their initial three-year tour, assuring they would not be considered for promotion and minimizing their future influence. 48. The Navy routinely accessed more chaplains than it needed, deciding whom it would retain or release by a Chaplain Active Duty Retention Advisory Group (“CADRAG”) board. a. When CADRAG results are examined by denomination and Tier, see ¶ 43, the results show the board members’ and applicants’ denominations are important.
Probability of Selection for Continuation in Service Candidate Denominations Tiered

Faith

Number Number Number Percent Percent

Cluster Considered Selected Rejected Continued Rejected

Tier I

46

43

0

100%

0%

Tier II

85

69

8

89.6%

9.4%

Tier III

115

86

18

82.7% 15.7%

Total 246

198

26

88.6% 10.3%

* Number Considered includes selected + rejected + alternates.

12 Plaintiff’s challenge of the Thirds Policy is not limited to the percentages or classifications associated with its origin and practical application but on the Navy’s ability to adopt arbitrary denominational personnel and personnel management goals, targets or objectives associated that have no compelling purpose and are unrelated to providing effective ministry to DON and other authorized personnel. Thirds Policy is a synonym for such arbitrary decision making power.
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Source: Table 5 from the Siskin Conjecture b. These results are statistically significant (using a Chi Square statistic) at p<.001 (more than three standard deviations.) Chance alone cannot account for this significant difference among the denomination-based clusters. Most plaintiffs’ fall in Tier III. c. The Navy has not provided neutral and objective criteria by which CADRAG boards review chaplain records. d. The evidence above shows the CHC has no objective criteria to evaluate performance for continuation purposes. Decisions as to who would be released from active duty after their initial three years of service were influenced by a chaplain’s faith group under the Thirds Policy, not on performance or meeting DON’s religious needs.
D. Religious Preferences and Favoritism in Chaplain Promotions 49. The CHC applied the Thirds Policy to promotions. Analysis of promotion board results shows the original Thirds Policy continued to remain generally in effect through FY1995. Catholics did not fill their accession quotas but reduced Catholic accessions did not affect the number of Catholics promoted to CAPT until approximately 1996.
a. During some time periods, CHC promotion boards consistently promoted approximately the same number of Liturgical Protestant chaplains as Non-liturgical chaplains, indicating the Thirds Policy evolved into (I) a quota making Liturgical Protestant chaplain promotions approximately equal to Non-liturgicals, and (ii) a floor of at least one- third Liturgical Protestants in the CHC. The chaplain LCDR and CDR promotion boards for FYs 97-99 provide the following FGC results. Liturgical Protestant consistently averaged at least 34% of promotions regardless of their percentage of the DON’s religious population.
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FY Commander 97 98 99
Total (50)

Catholic
6 2 6 14 (28%)

Prot. Liturgical

Non-liturgical

8 2 9 19 ( 38.0%)

6 3 8 17 (34%)

Special Worship

Lieutenant Commander

97

6

98

3

99

7

Total (72) 16 (22%)

9 7 9 25 (35%)

6 9 14 29 (40%)

1 1
2 (3%)

b. The Non-liturgical FGC classification hides the CHC’s bias against the non-

Baptist Non-liturgical faith groups.

c. The promotion board results show CHC’s strong bias against prior-service Non-

liturgicals.

d. Cohort analysis of promotion rates shows the standard pattern of prejudice, Non-

liturgicals are below Liturgical Protestants who are below Catholics.

50. By policy and practice, the CHC has established a favored set of denominations for use

on selection boards which distribute government benefits.

a. From FY1977 to 2003, 80% of promotion board memberships went to five

denominations: Roman Catholic (RC), Southern Baptist (SB), U nited Methodist (UM),

Presbyterian Church USA (PUSA), and Evangelical Lutheran Church in America (ELCA)

b. Statistical analysis of board precepts showing the frequency of

denominations participation on promotion boards, shows the Navy’s Implicit Favorite

Denominations can be divided into four tiers:

Tier I Roman Catholic - a faith group cluster composed of one denomination - There was at least one Roman Catholic on every Promotion Panel

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Tier II PUSA, SB, ELCA, UM , LMS, ABC, CC(DC), UCC & SDA - Double digit percentage likelihood of representation on Promotion boards
Tier III EC, AME, NBCUS, PNBC, RCA, etc. - non-trivial participation
Tier IV CGIC, CR, ORTH, CHCCC, N, PCA, GAGB, CFGC, etc. - Minimal participation, or no participation on Promotion Boards
Source: Siskin Conjecture, ¶ 48, Exhibit 15 to In re Navy Chaplaincy plaintiffs’ Rule 54(b) 51. The CHC reserved at least one selection board membership for Roman Catholic Chaplains for every possible career grade selection board that did not require Admiral board members from 1976 (FY77) until FY2002.
E. Religious Preferences and Favoritism in Chaplain Retention 52. This preference gave Catholics the ability to manipulate and control selection boards through secret votes, the small numbers of members and lack of accountability. See Count 4. 53. The evidence shows the Navy discriminates in its chaplain retention policies and practices on the basis of a chaplain’s religious faith group or denomination.
a. In spite of Title 10 U.S.C. § 632's requirement that an officer who is twice passed over for promotion be separated from the Navy, chaplains from favored denominations have been retained by the CHC despite multiple FOS. Many Catholic chaplains who have twice FOS have been routinely provided with additional 3rd, 4th and more opportunities for promotion, whereas chaplains of Non-liturgical faith groups or denominations, including many of these plaintiffs, have routinely been separated after two FOS. b. Although 10 U.S.C. § 14509 required separation of Reserve officers at age 60 until 2004, the CHC has retained Catholic chaplains, including FOS LTs and LCDRs, into their 60's and 70's until they qualify for a pension at 20 years time in service; retention was necessary because these Catholics had been accessed beyond the statutory age limit.
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c. The Navy has used the SER process to reduce the number of higher ranking Nonliturgical chaplains, removing them from service while retaining Liturgical chaplains with inferior records and less potential for future service. This insured domination of the CHC by the liturgical tradition and the minimization of Non-liturgical influence and opportunity for consideration for Admiral. d. While “SERBing” Non-liturgical chaplains, the Navy has recalled liturgical Reserve chaplains at the career ranks of LCDR, CDR and CAPT, contrary to Navy policy, promoting many after they have returned to active duty. Bringing these chaplains on at higher ranks reduces the number of promotions accordingly. See Count 5. e. The CHC has used both its promotion and CADRAG systems to enforce its Thirds Policy, forcing out otherwise qualified Non-liturgical chaplains, thereby ensuring Liturgical Protestant domination of the CHC. See Count 4.
F. Religious Preferences and Favoritism in Chaplain Positions of Power 54. The Navy and CHC have fostered a “high church” Protestant and Catholic monopoly of Chief of Chaplain’s position by policy and practice.
a. In 1988-2000, three of the four Chiefs of Chaplains were Lutheran. Prior to the CFGC and Adair chaplain lawsuits, only one clearly Non-liturgical officer has held the CHC’s highest post, Chief of Chaplains. List of Chiefs of Chaplains (Exhibit 2). b. Since the lawsuit were filed a Non-liturgical Chief was selected. 55. The Navy has delegated to the Chief unchecked and almost unlimited power in assignments, staffing, membership on selection boards and other key management decision areas that allow him to shape the CHC by control who occupies the key positions that manage the CHC. 56. The long reign of liturgical Chiefs who control the assignments of chaplains to key billets
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and their ability to manipulate selection board denominational results as shown below has fostered the promotion of a disproportionate number of “high church” Protestant and Catholic Chaplains to the ranks of Commander, Captain and Admiral. 57. Liturgical and/or favored denominations have dominated key CHC Billets ensuring their preferential treatment by future selection boards.
a. In January 1995, the Chaplain of the U.S. Marine Corps, CH (CAPT) Larry H. Ellis, wrote a memo to Navy Chief detailing years of apparent institutional bias against “low-church” Protestant Navy chaplains in regard to assignments to the most prestigious and influential positions or billets within the CHC. CAPT Ellis Memorandum to Chief of Chaplains (hereafter “Ellis Report”) (Exhibit 14). b. CAPT Ellis’ memo states that as of his 1/25/95 report, only 14 clearly Nonliturgical Navy chaplains had filled the 119 top CHC billets over the prior 15 year period (1979-84), a fill rate for Non-liturgicals of 11.8%. Id. at ¶ 5. The fill rate for Liturgical Protestants was greater than 50%, id., far out of proportion to the percentage of the liturgical denominations in the general population, the DON or the CHC. c. Despite this clear indicator of institutionalized religious discrimination, the Navy took no corrective action. d. Catholics and Liturgical Protestants still occupied a disproportionate percentage of those same key positions when these suits were filed. e. The policy placing two Catholic chaplains on every selection board (the 2RC Policy) from at least FY1977 to 1986 (started by RADM O’Connor and continued by following Chiefs) and the subsequent reduction to only one Catholic on each board (the 1RC Policy) led to a high selection rate for Catholics not based on performance or other
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legitimate selection criteria, especially at the key CDR level. f. Chiefs after RADM O’Connor followed his policy and placed two or more Liturgical Protestant chaplains on most chaplain selection board in addition to two Catholics, prejudicing plaintiffs and establishing favoritism for the liturgical tradition. g. The 2RC policy was replaced in 1986 by the 1RC Policy, following a successful judicial challenge to the 2RC policy. The 1RC policy continued through FY 2002. 58. The effect of the above policies can be seen in the table below showing what happens to the careers of one hundred chaplains of each FGC and when the Non-liturgical FGC is subdivided into Baptists and non-Baptists. See Compendium Table K-10.
Career Pattern by Faith Group

Faith Group 6 Roman Liturgical Baptist Non-Baptist

Period 9

Catholic Protestant

Non-liturgical

Accessioned

100

100

100

100

Serve 10 yrs

47

56

63

66

Serve 20 yrs

39

54

60

60

Serve 30 yrs

22

37

14

20

Rise to CDR

48

43

38

29

Rise to CAPT

23

22

15

11

59. This data shows a consistent pattern:

a. Catholics and Liturgicals are “over-represented” in the top categories of rank and

longevity (30 years) - signaling that they were promoted and retained in the CHC in excess

of their DON and CHC representation.

b. The percentage of Catholics promoted to CDR and CAPT is greater than that of

any other FGC, showing their advantage in the promotion process.

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c. Non-liturgicals in general, and Non-Baptist Non-liturgicals (NBNL) in particular are under-represented in length of service (30 years), showing they were not promoted and had to leave. Had they been promoted, that record would have appeared in the CHC History (biography) volumes as they would have been on active duty with their peers. d. Non-liturgicals in general, and NBNLs in particular are under-promoted; even those who survive their initial tours have an average lower rank than chaplains from other FGCs. 60. The effect of the Navy’s 2RC and 1RC Policies, its denominational quota system and its granting religious preferences to the liturgical religious traditions has impermissibly endorsed Catholic and Liturgical Protestant as preferred religious traditions and the CHC’s denominational hierarchy, in violation of the First Amendment’s Establishment Clause. 61. These policies clearly established denominational preferences and discriminated against plaintiffs, Non-liturgical chaplains and the personnel they represent, but served no legitimate compelling secular or neutral purpose, and were not narrowly tailored to do so. 62. These above patterns and practices which established a denominational hierarchy, violate the Constitution’s First and Fifth Amendments, and fail strict scrutiny and any Establishment Clause test. 63. This claim is common to all plaintiffs and the class.
COUNT 3 THE NAVY ESTABLISHED AND MAINTAINED AN UNCONSTITUTIONAL CHAPLAIN ACCESSION SYSTEM UNRELATED TO MEETING THE DEPARTMENT
OF NAVY’S FREE EXERCISE NEEDS 64. The allegations of paragraphs 1 through 63 above are incorporated herein by reference as though pleaded in full.
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65. The only evidence the Navy has produced addressing its evaluation of the DON’s free exercise needs shows it never did that before October 1999 (FY 2000), see Exhibit 9 (CHC briefing on DON Faith Group Preferences, pg. 3). 66. This and ¶¶ 43-45, incorporated by reference, show the Thirds Policy accession system had no connection or nexus to the purpose of the CHC, to meet DON’s free exercise needs, and the Thirds Policy accession system was the Navy’s vehicle to establish its preferred hierarchies. 67. No Navy document or witness could explain how the actual FGC goals were derived. 68. The current Navy accession system retains the ability to establish arbitrary faith group or denominational goals with no basis or linkage to is the DON’s Free exercise needs 69. No Navy document provides a basis for determining the proper number and composition of chaplains by denomination or determining the available pool of qualified clergy as required by Hazelwood School Dist. v. U.S., 433 U.S. 299, 309 (1977) and its progeny. 70. The Navy’s ascensions system is unconstitutional because the above and ¶¶ 43-45 show the Navy’s chaplain accession system results in denominational preferences unrelated to any foreseeable Free Exercise need , including DON’s and the accession system is not narrowly tailored to achieve the CHC’s constitutional purpose and is nothing more than a federal jobs program for clergy. 71. The Navy’s ascensions system is also unconstitutional because it relies on the unconstitutional CARE Board procedures described and challenged below. 72. This claim is common to all plaintiffs and the class because the preference conveys a message of forbidden favoritism, the failure to provide sufficient Non-liturgical chaplains has increased the burden on those accessed and the under utilization of liturgical chaplains is a symbol of preference and harm.
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COUNT 4 THE NAVY’S PAST AND PRESENT CHAPLAIN SELECTION BOARD SYSTEMS
VIOLATE THE FIRST AND FIFTH AMENDMENTS AND RFRA 73. The allegations of paragraphs 1 through 73 above are incorporated herein by reference as though pleaded in full.
A. Common Characteristics of the Navy’s Unconstitutional Selection Board Procedures 74. The Navy chaplain selection board procedures challenged here grant unlimited discretionary power to chaplains, who are defined, hired and treated as denominational representatives, to award government benefits and ruin chaplains’ careers with no accountability and no effective guarantees the delegated power will be used for neutral, secular and nonideological purposes. 75. In contrast to the U.S. Army and U.S. Air Force, which use large selection boards made up of officers from other categories (both line and staff) to select their officers for promotion, retention or SER, the Navy uses small boards where one member’s secret vote can preclude promotion or retention with no accountability. 76. Until 2002 after the litigation was filed, these selection boards were dominated by Chaplains. After 2003, the Navy reduced the number of chaplains on promotion boards to two, one of whom is the Chief or his Deputy, who rotate as board president. 77. The U.S. Army and U.S. Air Force require each board member to individually examine and vote on each candidate’s record which is then recorded, providing accountability for each member’s vote, contrary to the Navy. The Navy requires each member to vote in secret, keeps no record of each member’s vote, requires a board member to brief a candidate’s record; there is no record as to who briefed or what was briefed, after which the board votes. The Navy allows
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discussion of the candidate’s record after the briefing, but keeps no record of such discussion. 78. The U.S. Army and U.S. Air Force exclude their Chiefs and Deputies from serving on selection boards. The Navy uses the Chief or Deputy as board presidents, despite evidence from the Navy’s investigations that Chiefs can influence subordinate board members and an inappropriate word, phrase, expression or subtle nuance can influence a board member’s vote and deny a chaplain selection, for which there is no accountability. 89. The use of Chiefs and Deputies (RADMs) as board presidents who control a chaplain’s career, assignments and promotion opportunities, encourages abuse and squelches reporting board misconduct, a fact the Navy’s investigations verify. 80. These procedures, individually and collectively, violate the First and Fifth Amendments, and the challenge thereto is common to all plaintiffs and the class.
B. The Navy’s CARE Board System and Its Procedures are Unconstitutional 81. The instrument for implementing the Thirds Policy in the past and shaping the CHC now or in the future is the CARE board process which controls the chaplain accession system and is dominated by chaplains who do not apply any objective criteria when evaluating candidates. 82. The CARE board members, including denominational representatives, who award or deny government benefits, use selection board procedures that grant unlimited discretionary power to chaplains with no accountability and no effective guarantees the power will be used for neutral, secular and non-ideological purposes. 83. The CARE Board system, along with its procedures, have produced denominational hierarchies, see ¶ 43.g, and violate the First and Fifth Amendments. 84. This claim is common to all members of the class, see ¶ 73.
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85. In contrast to the U.S. Army and U.S. Air Force, which use large selection boards made up of officers from other categories (both line and staff) to select chaplains for promotion, the Navy’s small chaplain selection boards, which failed to select most of these plaintiffs, until recently were dominated by chaplains.
a. From at least FY77 to FY87, all board members were chaplains. From FY87 until after the FY01 CAPT board, i.e., after Adair was filed, each career grade promotion board had one line officer. b. Beginning in FY02, there were two line officer board members. c. Currently, career grade promotion boards have two chaplains, one of whom is the Chief or Deputy, who act as president. 86. In spite of the stated precept the board may consider only merit and not denominational affiliation, until 2002, after several chaplain suits were filed, each selection candidate’s three digit “faith group identifier” code (called an additional qualification designator or “AQD”) was prominently displayed throughout the selection board process.13 The Navy chaplain promotion board members, who are denominational representatives, were clearly made aware of each chaplain promotion candidate’s denomination or faith group. 87. This procedure’s only purpose was to identify a candidate’s faith group to the board, thereby creating a suspect religious category unrelated to any legitimate Navy objective. This procedure allowed the Navy to enforce its Thirds Policy and permitted chaplains to exercise their individual or faith group prejudice for or against other chaplains or faith groups, particularly against Non-liturgical chaplains.
13 In other chaplain litigation, the Navy maintains it no longer identifies each chaplain’s AQD to the board members.
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88. The Chief of Chaplains is a RADM and approved all chaplain board members for the Navy’s chaplain promotion boards until after the chaplain suits were filed, and may still approve or influence the chaplain board membership.
a. In 1976, Catholic Chief of Chaplains RADM O’Connor began placing two or more Catholics on each career grade chaplain promotion board. b. The Liturgical Protestant Chiefs who succeeded RADM O’Connor continued placing two Catholics on every board along with at least two Liturgical Protestant chaplains, sometimes the same denomination as the Chief or his Deputy. c. The CHC stacked boards with Liturgical chaplains from FY77-02; some boards had no Non-liturgical board members. Exhibit 15. d. The 2RC Policy ended in 1986 when CH (then LT) Ronald Wilkins, faced with discharge after two FOS, challenged the 2RC policy and obtained an injunction against his discharge. The Wilkins Court found “the [Navy]’s policy of placing two chaplains of the Roman Catholic faith on each and every Chaplain Corps Selection Board” was probably “a violation of the First Amendment.” Wilkins v. Lehman, Civil No. 85-3031-GT, slip op. at 8, (S.D.Cal. 2/10/86) (Order Granting Injunction). Exhibit 3. e. The Navy then settled with CH Wilkins, which included an end to the 2RC Policy. f. The Wilkins Court suggested the Navy adopt the Army and Air Force practices of using non-chaplains as board members, which the Navy rejected. g. The Navy adopted the 1RC policy (the Chief was Catholic RADM McNamara), reserving a promotion board membership for one Roman Catholic chaplain on every career grade selection board that did not require Admirals as board members, until FY 03. h. Although Catholics represent about 23.6% of the Navy (see Exhibit 5 and ¶ 19)
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and despite the Wilkins decision indicating that placing two chaplains of the same

denomination on the same chaplain promotion board was constitutionally suspect, the

Navy placed two Roman Catholic chaplains on the FY97 LCDR Chaplain Selection Board

and on the FY98 CDR selection board. Because the Chief selected or approved the board

members, this was not an accident or the result of some random process.

89. Existing records identifying the board members for the 73 career grade promotion boards

from FY77-02 (Exhibit 15) show the following frequency of denominational and faith group

cluster (FGC) representation on these boards. See Compendium Table 1.

Seventy Three Boards
Number of Boards with No Officers of this Faith:
Number of Boards with One Officer of this Faith:
Number of Boards with Two Officers of this Faith:
Number of Boards with Three Officers of this Faith:
Number of Boards with Four Officers of this Faith:

Representation by Faith Group & FGC Number of Boards

Roman Catholic

Liturgical Non-liturgical Protestant Baptist Other

Special Worship Jewish Other

0

0

16

52

66

57

42

13

40

20

7

16

29

35

17

1

0

0

2

21

0

0

0

0

0

4

0

0

0

0

90. This clearly shows religion-based decision-making took place in composiing CHC promotion boards.

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a. Every chaplain promotion or SER board from FY77 to FY02 not requiring

Admirals as board members was composed under the 2RC or 1RC policy. A few

promotion boards had three Catholic members.

b. Eighteen percent of the boards had one Liturgical Protestant Chaplain, 82% had

two or more and 29% had three. No board lacked a Protestant Liturgical board member.

c. Some boards had no Non-liturgical board member and only 18% of the boards had

a Non-Liturgical Non-Baptist (“NBNL”) board member.

d. The Navy discontinued its 1RC Policy in FY03, after several chaplain lawsuits

challenged the practice in their complaints.

91. “Having the good fortune to find a member of your denomination on the selection board is

worth a 25% increase in your likelihood of selection [(65%-51%)/51%]; a close match is worth

about half that benefit.” Allonge Declaration of Harald Leuba, Ph.D. (Exhibit 11) at 7, ¶22.

Allonge Table 1 (pg.7), shows the “Effect of a Denominational Match on Selection for Promotion

(to Commander, 1981-2002)”

Candidate Category

Number

Number

Considered Selected

Probability of Promotion

1. Catholic (Always a Match)

170

113

.665

2. Non-Catholic, Strict Match

111

72

.649

3. Non-Catholic, Close Match

94

54

.574

4. Non-Catholic, No Match

328

168

.512

92. The Chief’s control of the composition and membership of CHC promotion boards served

no purpose or rationale except to control the composition and makeup of the CHC in a manner to

ensure the continued operation of the Navy’s illegal religious quota system for the benefit of

preferred religious traditions.

a. Exhibit 16 shows the over- and under-representation of FGC board members

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compared with the LT community under consideration for promotion to LCDR. Catholics were never under-represented whereas Non-liturgicals always were. b. Exhibit 17 shows the over and under representation of FGC board members compared with the LCDR community under consideration for promotion to CDR. 93. As stated in ¶ 38 above, the Navy has a favorite set of denominations for promotion board memberships, giving five denominations 80% of chaplain promotion board memberships from 1977-2002 as shown. The column “% Selected to CDR”, shows the denomination of board members influences the board results and the favored denominations receive more promotions than the less favored from which many of these plaintiffs come.
1977 thru 2002 Denominational Appearance as Promotion Board Members ( )= total number of appearances

Faith

Roman

Group

Catholic

Cluster 6

Tier I 100%

RC (102)

Tier II 25 to40%

Tier III 7 to15% 4 to 8 seats in 25 years

Tier IV 0 - 5% 0 to 3 seats in 25 years

5 Other [Catholic type] (0)

Liturgical Protestant

Non-Liturgical Special

Protestant

Worship

% Selected to CDR*
48.34 %

PUSA (43) ELCA (29) UM (21) LMS (15) ABC (12) UCC (10) CC/DC (10)
AME (8) RCA (7) EPIS (7)

SB (37)
NBCUS (7) PNBC (7)

SDA (11) 45.07 %

J (6)

36.12 %

CRC (3) ECCA (3) CME (2) 53 Others(0-2)

BGC (5) GARB (4) CGIC (3) 109 Others (0-2)

LDS (4) ORTH (3) CS (1) 10 Others (0)

27.00 %

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* As reported in Biographies, Chaplain Corps History, Volume X.
Source: the Siskin Conjecture, ¶ 48, Exhibit 15 to In re Navy Chaplaincy plaintiffs’ rule 54(b) Motion to Amend or Alter 2002 Interlocutory Decision. In re Navy Chaplaincy Doc. No. 21 (incorporated by reference). 94. These differences are statistically significant, i.e., not the result of chance, showing some board members advance their own denominations in violation of the Establishment and Due Process Clauses, which occurs at the expense of plaintiffs and the less favored denominations. 95. Although one of the CHC’s favored denominations for board memberships was the Southern Baptist Convention, see ¶ 38 supra, the denomination of several of these plaintiffs, this favoritism has masked and/or enabled prejudice against these plaintiffs because of their strong conservative theological and evangelical beliefs..
a. Testimony in Adair v. Winter, shows “there was a big battle in the Southern Baptist Convention with liberalism vs. conservatism” in the 1970s and ’80s b. That same testimony, agreeing with some plaintiffs experience, shows some senior Southern Baptist chaplains were very liberal and for all practical purposes were liturgical. c. The ability to zero out a chaplain with no accountability allowed liberals of any faith group to end the careers of committed evangelicals and conservatives. d. The fact Southern Baptists were favored in a CHC whose leadership was largely Liturgical Protestant is no defense for the Navy’s illegal and burdensome prejudice and discrimination against these Southern Baptist, Baptist and non-Baptist plaintiffs. e. Analysis of promotion results for the denominations which had a Chief, compared with Southern Baptist which did not have a Chief in 1965-70, do statistically significantly worse than Catholics and other denominations who had a Chief. 96. Statistics show the Catholic and Liturgical Protestant domination of CHC promotion
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boards, despite the religious demographics of the DON and the CHC, see ¶¶ 61-62, supra, has benefitted them to the detriment of plaintiffs. 97. The Chiefs and Deputies have exercised enormous, improper power and control over Chaplain promotions in their role as board president.
a. One Chief informed a board of his personal list of those whom he believed constituted “the future of the Navy.” The chaplains so identified were promoted. This is a per se violation of 10 U.S.C. § 615 (defining type of information provided to board) and § 616(f)(2) (improper influence on board forbidden) as well as the Navy’s promotion board policies. b. RADM Holderby admitted to the NIG that as a RADM and board President, he could influence junior board members.14 c. The Chief and Deputy have inherent power to retaliate in subtle ways against any chaplain board member who challenges, disagrees with, or opposes them in selection decisions. d. A line officer was board president for the FY01 CHC CAPT board. It selected 7 Non-liturgicals and 3 Liturgical Protestants. In FY02, the Chief was again board president and the board chose 10 Liturgical Protestants and 3 Non-liturgicals. The FY00 board (chaplain as president) selected 5 Liturgical Protestants and 5 Non-liturgicals. 98. The Navy chaplain selection boards challenged here, both promotion and SER, were and are composed of a small number of board members, usually five to seven, who vote confidence levels of 0, 25, 50, 75, and 100 in secret. One zero vote guarantees the candidate will not be
14 Plaintiffs’ recent statistical evidence shows candidates of the Chief’s denomination have a higher promotion rate when the Chief is board president. Plaintiffs will move to supplement the Complaint with this and other recent relevant evidence.
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selected.15 This violates the First and Fifth Amendments by: a. Delegating to denominational representatives discretionary government authority to award, deny or terminate government benefits for other denominational representatives; b. This delegation is absent guarantees the authority will be used for secular, neutral and non-ideological purposes as shown by several board investigations; c. The display of a chaplain’s faith group allowed some board members to exercise, either consciously or unconsciously, their denomination or faith group bias either (1) for those of their own faith group, thereby advancing their own faith group, or (2) against those faith groups with which they disagree or dislike, and thereby penalized them, all in violation of the First Amendment;16 d. Allowed the Catholic and Liturgical Protestant traditions and the Chiefs to operate the CHC much like a religious patronage system, in violation of the First and Fifth Amendments; e. Provides an unchallenged opportunity for religious bias or denominational issues to interfere with selecting the best qualified chaplains for promotion; f. Promotes denominational factionalism by creating the appearance, if not the reality, of promotion decisions made on religious criteria unrelated to career performance and forbidden by the First and Fifth Amendments as indicated in the Stafford Report and the subsequent DOD Inspector General inspection described below;
15 The NIG investigation of the FY00 Chaplain CAPT Promotion board established the female chaplain board member “zeroed out” a female chaplain candidate because the female board member disagreed with the candidate’s view of women in ministry. The NIG report describes zeroing out, a not uncommon practice on CHC boards. 16 Plaintiffs do not allege all chaplains on chaplain selection boards would vote on their biases or preferences, but some have and some would, knowingly or unknowingly.
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g. Allows some board members to violate without accountability federal statues and the Navy’s own equal opportunity regulations and policy concerning selection of best qualified candidates for promotion or retention; and h. Promotes denominational tension by creating the appearance and reality of preferences for Catholic and Liturgical Protestants forbidden by the First and Fifth Amendments.
D. Evidence of Religious Discrimination In Chaplain Promotions 99. In 1997, responding to an allegation of religious discrimination by then LCDR Aufderheide on the FY97 and 98 Commander (O-5) chaplain promotion boards, CAPT J. N. Stafford, special assistant for Navy minority affairs, investigated the board results and submitted a report to the Chief of Naval Personnel (Exhibit 18).
a. CAPT Stafford’s analysis of the FY97 and 98 chaplain CDR promotion selection boards indicated “that the board may have systematically applied a denominational quota system.” Id. at 1, ¶ 2. b. CAPT Stafford also noted physical fitness standards that would have kept line officers from being promoted were apparently “waived” or ignored for certain liturgical chaplains who were promoted. Id. at 2, ¶ 4. c. The subsequent March 1999 DOD IG investigation into the same boards found faith group “may have been a factor in” both the FY97 and 98 CDR boards in selecting chaplains for promotion. Exhibit 19 (Extracts pp. 3 & 4). d. The NIG and DOD IG board member interview notes clearly show denomination was a factor that overrode records, resulting in promotions for less qualified chaplains. 100. While the NIG and DOD IG’s evidence validated CAPT Stafford’s finding that
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denomination was a promotion criteria, the Navy took no action to eliminate its use of “denominational considerations” for chaplain promotions or other obvious unconstitutional practices.
a. This evidence of systematic, illegal denominational bias shows Plaintiffs’ and their class’ opportunities for promotion were diminished in violation of the First and Fifth Amendments. b. The 1RC and 2RC Policies established a forbidden religious test for board membership in violation of Article VI of the Constitution. 101. The CHC’s Policy of recalling mostly liturgical chaplains from the Naval Reserve at grades above LT in violation of its own regulations reduces the number of promotion spaces and denies plaintiffs and their class equal opportunity for promotion. 102. The promotion board results show a distinct bias and hostility toward Non–liturgical prior service chaplains. The CHC alleged it failed to consider prior officer fitness reports in evaluating plaintiffs for promotion, e.g., CH Weibling. This category includes 27 or 41.5% of the plaintiffs: Adair, Arnold, Blair, Byrum, Carson, DeMarco, Gordy, Hamme, Johnston, Klappach, Klappert, Kohlmann, Lancaster, Looby, Merrit, Mitchell, Prince, Quiles, Rush, Scott, Spalding, Stewart, Thompson, Torralva, Twombly, Watson, Weibling. 103. The following plaintiffs were FOS by boards for the indicated ranks. In some cases, plaintiffs were denied promotion at one rank, selected for promotion by a board either on active duty or in the Reserves, and subsequently FOS at the next rank in both active duty and the Reserves. a.. LCDR: Bailey (three times), Belt (99), Bradley (FY03), Carson, Doney, Garner, Hamme, (90), Hendrix (89), Kitchen, Kohlman (93), Mac (92) Merit (96), Porter-Stewart,
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Roman (2003), Rush (93), Thyrion (99-2000), Watson, Weibling, Wineman; b. CDR: Arnold, Blair (97), Calhoun (2001), Doney (Reserve), Farrell, (Garner (Reserve), Gibson (FY 99), Harkness (2000), Heinke (93), Hendrix (Reserves), Jones (2000), Kirk, Klappach (first time), Lancaster (91-first time), Lavelle (98), Marsh, Mitchell (01), Moreno, Nichols, Purser (2000 -01), Quiles, Roysden (98), Scott, Stewart, Swanson, Thompson, Torralva, Tostenson,, Twombly, Weibling (Reserve), Wilder (99), Wright, Xenakas; c. CAPT: Denny, Gibson, Harkness (Reserve-08), Johnson, Klappach, Lancaster (97), Looby (03), Mak. E. The Navy’s Chaplain Active Duty Retention Advisory Group (CADRAG) or Similar
Systems Is Unconstitutional 104. Paragraph 47 above describes the CADRAG process and its use of boards dominated by chaplains and are incorporated herein by reference as if printed in full. 105. Although Liturgical Protestant chaplains represented approximately 12% of the DON religious needs, they were routinely selected for retention beyond their initial 3-year tour of service in numbers disproportionate to their DON denominational membership. This policy supported the CHC’s unrestricted ability to set arbitrary FGC and denominational allocations, e.g., the Thirds Policy with its 35% allocation for Liturgical Protestant chaplains, and resulted in the over-representation of Liturgical Protestant chaplains and the under-representation of Nonliturgicals in the CHC. Catholics were routinely continued resulting in over-representation of their fair share of available clergy. 106. The active duty extension process (a) allows senior chaplains to veto any application for extension on the basis of subjective evaluations alone, (b) provides no objective evaluation
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criteria or (c) opportunity for applicants to rebut negative information by biased senior chaplains. 107. Evidence suggests and discovery will show the CADRAG decisions were influenced by the Thirds Policy and considerations unrelated to performance, including forbidden religious and denominational factors. 108. The CADRAG process and its decision procedures, including its board system, have used no objective criteria and provide no effective guarantees that denominational considerations do not enter into, influence or determine who remains on active duty and thereforeviolate the First and Fifth Amendments and RFRA.17 109. The following plaintiffs were separated under CADRAG: Hatch, Johnston, Nall.
F. The CHC Selective Early Retirement (SER) System Is Unconstitutional 110. The 1RC policy was applied to every SER board that did not require Admirals as board members.18 111. Every CHC SER board had at least one chaplain board member and a Chief or his Deputy were on each board. 112. The CHC’s favoritism for some denominations for board memberships, including Southern Baptists, see ¶ 38 supra, has masked and/or enabled prejudice against these plaintiffs, including these Southern Baptist plaintiffs, and their strong conservative theological and evangelical beliefs. 113. The Navy’s SER precepts provide criteria for retention rather than for selection for SER, i.e., those who have he greatest potential for future service are retained.
17 Recent CHC publications state the CHC will reinstitute the CADRAG process to review chaplains for continuation on active duty. 18 As an economy measure, the FY 91-94 CAPT SER boards whose members by regulation had to be Admirals, also conducted the CDR SER boards.
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114. To decide who should be retained, SER Boards use the same challenged procedures used for promotion boards described above in ¶¶ 72-75. 115. Statistical analysis of SER results and a community manager memo stating SER would be necessary to denominationally balance the CHC shows the SER process was used to maintain denominational balance in support of the Thirds Policy, to the detriment of plaintiffs and the class. 116. All of the above challenged selection policies use facially neutral regulations and statutes as a cover for an illegal, systematic, discriminatory system or practice to accomplish forbidden religious discrimination and homogeny in the CHC. 117. Analysis of SER board results (a) show marked differences in the outcomes when SER decisions are made by Admirals who are line officers versus when chaplains make the SER decisions; (b) suggest SER was used to “denominationally balance” the CHC and further the Thirds Policy; and (c) SER was used for retaliation or other improper purposes, such as eliminating future potential leaders in the CHC. 118. The Navy’s illegal recall system, see Count 5, protected the CHC’s favorite denominations from SER. 119. The Navy illegally retained Reservists, including those illegally recalled, on active duty instead of separating them prior to SERBing active duty chaplains, including these plaintiffs and other Non-liturgical chaplains in the class. 120. The following plaintiffs were illegally selected for SER at their indicated ranks: CDR Adair (96), CDR Byrum (96), CDR Demy, CAPT Ellison (97), CDR Klappach, CAPT Linzey (97), CAPT Prince (98). 121. The Navy’s denominational preferences evidenced by the above communicate twin forbidden messages, favoritism to liturgicals and inferiority and second class citizenship to
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plaintiffs and the class and personally affect each plaintiff and member of the class. 122. The above Navy policies and procedures violate the First and Fifth Amendments, RFRA, are subject to strict judicial scrutiny, are not related to a compelling government interest, are not narrowly tailored to achieve that purpose, and fail any Establishment Clause test.
COUNT 5 THE NAVY’S CHAPLAIN RECALL SYSTEM VIOLATES ITS OWN REGULATIONS,
IS DISCRIMINATORY, PREFERENTIAL AND UNCONSTITUTIONAL 123. The allegations of paragraphs 1 through 122 above are incorporated herein by reference as though pleaded in full. 124. Navy policy and regulations limit Reserve chaplain recall in the career ranks to positions that cannot be filled by active duty promotions. This limits such recalls to LTs. 125. The Navy has consistently violated its policy and Regulations, see ¶¶ 43 and 52.d, by recalling to active duty primarily Catholic and Liturgical Protestant Naval Reserve chaplains in significant numbers at the rank of LCDR and above. 126. These illegal recalls reduce the available promotion opportunities in the career grade in which the chaplain is recalled, and the recalls compete for promotions at the next higher level. Many have been selected for promotion without serving the necessary time in the difficult tours and demanding assignments the Navy requires for Non-liturgical chaplains to be competitive; e.g., Chaplains Vieira and Lyle. 127. The Navy has not identified any senior or career grade billets requiring specific denominations nor announced or documented vacancies at career grades that cannot be filled by promotions from the regular active duty ranks. 128. The Navy’s denominational preference for Catholics and Liturgical Protestants in recalling
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Reserve chaplains to active duty in violation of its own policy and regulations communicates twin forbidden messages, favoritism for these denominations and inferiority and second class citizenship to plaintiffs and the class, some of whom have worked side by side with the illegally recalled Catholics and Liturgical Protestant chaplains, and been denied promotion, possibly because of the recallee’s occupation of a career position. This message is particularly pronounced given the fact many of the illegal recallees have been promoted and earned reputations as known killers of Non-liturgical (Evangelical) careers while preferring and advancing liturgical chaplains. 129. The Navy’s twin unconstitutional messages of preference and prejudice are specifically directed to plaintiffs and members of the class and communicated within the CHC through and by messages, meetings and publications bringing plaintiffs and the class into unavoidable contact with not only the message(s) but the personification of the Navy’s forbidden message in the form of (a) illegally recalled Catholic and Liturgical Protestant chaplains as well as (b) the results of the Navy’s illegal selection board procedures and biased personnel policies and practices. The message is also directly communicated by the assignment of plaintiffs and class members to work under the supervision of such illegally recalled chaplains. 130. The illegal recall system shields the favored denominations from SER, burdens plaiantiffs and the class. See Count 4. 131. The Navy’s illegal Reserve chaplain recall practice has demonstrated an illegal preference for Catholics and Liturgical Protestants in violation of the First and Fifth Amendments and RFRA. This Claim is common to all plaintiffs and the class.
COUNT 6 ALLOWING CHAPLAINS TO RATE OTHER CHAPLAINS, EXCEPT IN EXCEPTIONAL CIRCUMSTANCES, VIOLATES THE FIRST AND FIFTH
AMENDMENTS [DISMISSED] 61

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132. The allegations in paragraphs 1 through 131 above are incorporated herein by reference as though pleaded in full. 133. The Navy has created a culture and system which has allowed and allows certain senior chaplains to exercise their religious bias and destroy Non-liturgical chaplains’ careers with no accountability.
a. No Non-liturgical or evangelical chaplain who worked for CH (CAPT) David Young at Naval Medical Center San Diego has been promoted; no Non-liturgical who worked under CH Buchmiller has been promoted on active duty; no Non-liturgical chaplain who has worked under CH Rock at Naples has been promoted; no pentecostal chaplain who worked under CH Rock or was considered by a board with him as a member has been promoted. b. There are many other senior chaplains who have made careers out of destroying other chaplains’ careers, e.g., CHs Jane Vieira, Roy Swift, and at least one Non-liturgical senior chaplain who admitted his leadership style was to destroy everyone else so he would be the only one left standing. 134. Although aware of these career destroyers, the CHC and the Navy have taken no steps to minimize their ability to destroy the lives, careers and families of Non-liturgical chaplains, to discipline the career killers, or to protect, defend or remedy the damage to those who have served and suffered under them. 135. As Chief, RADM Muchow put out a letter in which he encouraged senior chaplains and commanders to evaluate chaplains on the basis of their “spirituality”, which was and remains an undefined, subjective term. 136. The Navy has established organizational structures and systems, e.g., Regional Chaplains,
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in which senior chaplains (often liturgical) rate other chaplains, even when those chaplains are assigned to a specific DON unit or facility, rather than the commander of the base or unit on which the chaplain serves. In some cases the regional chaplain has been able to acquire control of funding for subordinate chaplains’ funding allocations. One Catholic regional chaplain eliminated Protestant Directors of Religious Education (“DRE”) while keeping and fully funding Catholic DREs. 137. The above systems are part of a systematic means of maintaining the Navy’s illegal discriminatory procedures, policies and objectives, and ensuring Non-liturgicals are prejudiced in promotions and career opportunities. 138. It is common practice for the senior chaplain to provide fitness report input or completed fitness reports to the Commander or Executive Officer where more than one chaplain is assigned to a unit, base or ship. Such input has no basis in objective, neutral, non-ideological standards and this practice has been used by Catholic and Liturgical senior chaplains to handicap or destroy Non-liturgical chaplains’ careers because commanders have little knowledge of junior chaplains’ work and incorrectly assume senior chaplains are free of bias, e.g., Navy San Diego Medical Center, Naples. 139. Such systems violate the First and Fifth Amendments. 140. The failure to provide objective retention criteria while emphasizing subjective evaluation violates Due Process and the Establishment Clause. [If reinstated, this claim would be common to all plaintiffs and the class.]
COUNT 7 THE NAVY HAS CREATED AN UNCONSTITUTIONAL CULTURE IN ITS CHAPLAIN
CORPS CHARACTERIZED BY PERSISTENT AND OVERT HOSTILITY TO NONLITURGICAL CHAPLAINS AND NAVY MEMBERS AND FAVORITISM TO 63

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LITURGICAL DENOMINATIONS 141. The allegations in paragraphs 1 through 140 above are incorporated herein by reference as though pleaded in full. This count is common to all plaintiffs and the class. 142. The Navy has established a culture of manifest hostility toward Non-liturgical religious beliefs and practices in violation of the First and Fifth Amendments because of the illegal religious preference system and its resulting discrimination against Non-liturgical chaplains in many and various aspects of the CHC’s personnel management decisions and processes . That culture allows the types of retaliation described in Count 12 and abuse of the selection process in Count 4 and the other abuses challenged herein. 143. Comparison of the DMDC’s religious demographic data with the CHC’s FGC accession goals, the CHC’s recall, promotion and CADRAG policies, procedures and results, and CHC composition from FY88 to 2000 provides irrefutable evidence of the Navy’s religious bias and hostility against Non-liturgical traditions and faith groups. Although the Navy (and national) membership of Non-liturgical traditions and faith groups has exceeded that of Liturgical Protestant denominations by a factor of four, the Navy’s former accession goals show an inverse relationship to its demographics. In some years, the Liturgical Protestant goal was twice that of the Non-liturgical. This demonstrates the Navy’s accession goals were developed on an arbitrary basis designed to hinder Non-liturgical faith groups. 144. The Navy alleges its current accession policy (post 2002) has no goals related to denomination or faith group categories. This violates the First Amendment by making the CHC a forbidden federal jobs program for clergy, rather than an accommodation narrowly tailored to meet the specific religious free exercise needs of DON personnel. 145. The Navy has no realistic, objective, secular, religiously neutral and non-ideological
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standards by which to evaluate chaplains and their ministry. The above structures and systems have no valid or reliable means of ensuring religious neutrality, keeping religious animosity, bias or differences out of the rating process. The fitness rating form designed for line officers does not address, explain or identify areas of competence relevant to chaplains. 146. Liturgical Protestant and Catholic senior chaplains have purposely given some Nonliturgical chaplains lower performance ratings than similarly situated subordinate Liturgical Protestant and Catholic chaplains solely on the basis of their religious identification and beliefs, despite evidence of the Non-liturgical chaplain’s superior performance. CAPT David Young, the Catholic command chaplain at Naval Medical Center San Diego, consistently rated his Catholic chaplains above non-Catholics, despite glaring deficiencies in those Catholic chaplains’ performance. There are senior Catholic and Liturgical Protestant chaplains under whom no Nonliturgical chaplain has been promoted. See Count 7. 147. The Navy’s continuation of selection board procedures that lead to, allow and promote favoritism and discrimination despite its own investigations, statistics and consultant’s evaluations documenting misconduct and denominational preferences demonstrates a pervasive culture of Non-liturgical bias to which the Navy has closed its eyes. 148. The Navy has established two systems of discipline and administration, one for Liturgical traditions, and one for Non-liturgical traditions. For example:
a. CH Drake, a Catholic chaplain, was court-martialed for violating an order but allowed to retire with full pay, while plaintiff CH Tostenson who reported Drake for violating the order was FOS; CH Soto, a Catholic, was accused of adultery but referred to the Catholic Military Ordinate for investigation and discipline, then secretly returned to active duty, was promoted and allowed to retire as a CAPT while a Non-liturgical
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chaplain accused of child abuse in a divorce proceeding was administratively and punitively discharged, and not reinstated even though a civil trial found him not guilty. b. Plaintiff Klappert was falsely accused of sexual harassment but cleared by a civil court. The Navy continued to prosecute, ignored witnesses, misrepresented what other witnesses said and forced the chaplain to retire. c. The battleship USS Iowa’s Catholic commander (“CO”), made Catholic CH Danner, a junior LCDR, a co-equal command chaplain with plaintiff CH Thompson, then a senior LCDR, a very unusual situation, contrary to Navy regulations and protocol. Count 12 ¶ cc describes the religious discrimination CH Thompson experienced on the Iowa. The Washington Times reported CH CH Danner received a letter of reprimand later for embarrassing the Navy. CH Danner was promoted to CDR and subsequently to CAPT while CH , ¶ was FOS to CDR and forced to leave the service in January 1993. 149. The CHC has retaliated against Non-liturgical chaplains who have complained about their “second class” treatment. See Count 12. 150. Other manifestations of prejudice against Non-liturgical beliefs: a. Senior Catholic chaplains, e.g. Buchmiller, Rock, have forced Protestants to change Vacation Bible School, a traditional Protestant/evangelical activity to teach children the Bible and Protestant doctrine, to accommodate Catholics. In so doing, Nonliturgicals have been forbidden to use certain evangelical practices and phrases, e.g., born again, so as not to offend Catholics; b. Catholic and Liturgical Protestant senior chaplains have insisted on rotating chaplains through evangelical services instead of assigning a chaplain as a “pastor” for a congregation, reflecting the liturgical viewpoint that the liturgy satisfies the congregation’s
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worship need, rather than the Non-liturgical view that good biblical preaching, music, and praise and worship comprise the worship experience; c. Catholic and Liturgical chaplains have restricted Protestant Sunday School material in some cases, excluding material acceptable and desirable to Non-liturgicals and, as exemplified in Naples, providing liberal religious education material offensive to many Non-liturgicals, and a pastor’s duty to establish a relationship with the congregation; d. Chaplains who protest such things have been criticized and downgraded on fitness reports, because they are not team players and/or cause division; e. Reports of Senior Chaplain abuse or misconduct have been ignored or the investigations have whitewashed or misconstrued criminal activity. For example, the recall of CH (CDR) John Lyle as a “flight surgeon” and the violation of the Joint Travel Regulations in his recall have gone unaddressed. f. A marine Sargent returning from deployment accused Catholic CH Soto of having an affair with his wife during the marine’s deployment. The wife admitted to the affair. The Navy turned the investigation over to the Catholic endorsing agency, which concluded CH Soto was innocent, allowed Soto to leave active duty but remain in the Reserve until things quieted down. The CHC then illegally recalled Soto who had been promoted to LCDR in the Reserves and thereafter promoted hm to CDR and CAPT. 151. Counts 8-10, which are incorporated here by reference, provided further evidence of the culture of bias and hostility challenged here. 152. The Navy’s willful blindness to the above culture and its manifestations and practices demonstrating the Navy’s and the CHC’s hostility to plaintiffs violates the Constitution’s Establishment, Free Exercise, Free Speech and Due Process Clauses.
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COUNT 8 THE NAVY’S HOSTILITY TO NON-LITURGICAL DENOMINATIONS AND THEIR TRADITIONS HAS BURDENED PLAINTIFFS IN VIOLATION OF THE FIRST AND
FIFTH AMENDMENTS AND RFRA 153. The allegations of paragraphs 1 through 152 above are incorporated herein by reference as though pleaded in full. 154. The CHC’s religious discrimination and hostility towards Non-liturgical chaplains in accession, promotion and retention policies have resulted in over-representation of Liturgical Protestants and under-representation of Non-liturgicals, compared to their percentage of the religious demographics. 155. The CHC never identified faith group preferences of DON personnel prior to October 19/99. Both RADMs Muchow and Holderby testified they recognized the increasing Nonliturgical DON population, directed that more Non-liturgical chaplains be accessed, but could not explain why the actual CHC approved accession goals reflected the exact opposite, a continued emphasis on Liturgical Protestant chaplains. 156. The Navy’s discriminatory policies and hostility identified in this Complaint have prevented the viewpoint or needs of Non-liturgical faith groups from being considered in Navy decisions affecting religious ministry and resources. 157. The CHC’s deliberate and systematic over-representation of Liturgical Protestant chaplains from at least 1986 to the present has ensured that the free exercise of those faith groups are more than adequately met, but the under-representation of Non-liturgical chaplains limits their ability to meet DON’s Non-liturgical community’s religious needs by severely limiting their access to chaplains and worship services of their faith groups. 158 Non-liturgical chaplains must expend more effort to meet the needs of their faith group
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members than is required by Liturgical Protestant chaplains. See chaplain/adherent ratios by FGC. Exhibit 20. 159. Whether the above challenged policies are deliberately motivated by faith group bias or are merely the result of gross indifference, they have produced an unconstitutional adverse and disparate impact on Non-liturgical chaplains and the DON personnel of their faith groups, deny Non-liturgical DON personnel and chaplains their Constitutional right to exercise their religion, their Fifth Amendment right to equal treatment under the law, and violate the neutrality required under the Establishment Clause. 160. The CHC’s active indifference or outright hostility to Non-liturgical DON personnel’s worship needs and their chaplains is exemplified by the CHC’s practice of assigning to command chaplain positions chaplains who are known to be anti-Non-liturgical and anti-evangelical, and allowing them to oppress and hinder the Non-liturgical religious community and their chaplains without accountability.
a. In October 1997, the CHC assigned CH (CAPT) Ronald Buchmiller as the command chaplain in Naples, Italy. b. Catholic CH Buchmiller began criticizing the senior Protestant chaplain, LCDR De Marco (now an Adair plaintiff) because of his evangelical preaching and ending his prayers “in Jesus name” according to his Southern Baptist tradition. CH Buchmiller told CH De Marco and others that as De Marco’s rater, he would make sure DeMarco would never make CDR. CH Buchmiller fulfilled his promise. c. CH Buchmiller also criticized another liturgical Protestant chaplain who had taken over a charismatic Non-liturgical service because he preached classic Protestant doctrine, e.g., sola scriptura and salvation by faith in Christ.
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d. Members of the Naples Protestant evangelical community have testified CH Buchmiller created a climate of religious oppression and fear. e. By 1999, at least nine English speaking Non-liturgical churches had sprung up off base whose membership was made up almost entirely of Navy personnel assigned to the Naples Navy base, driven off post by CH Buchmiller’s overt hostility. There were few such churches prior to CH Buchmiller’s arrival. f. The Navy did not facilitate ministry to military members whose religious worship needs could only be met by attending off post Non-liturgical churches. Although DOD and Navy regulations provide for hiring civilian clergy when necessary to meet free exercise needs, the Navy did not employ available English speaking Non-liturgical pastors to meet Non-liturgical free exercise needs. Although these Non-liturgical pastors were willing to minister to their parishioners at no cost to the government, the Navy denied these ministers base passes to minimally secured areas of Navy housing and the Naval hospital, even to visit parishioners in the hospital. g. CH Buchmiller greeted plaintiff John Gordy with “I guess you’ve heard I have a reputation for ruining evangelical careers” and proceeded to uphold his reputation. h. CH Gordy started a charismatic/pentecostal service. In 2003-04, it had grown to the largest non-Catholic service at Naples with an average attendance of about 160 people. When CH Gordy left, the CHC provided no charismatic or pentecostal replacement. Similar problems have arisen in Rota, Spain, that has had a continuing large charismatic/pentecostal congregation. i. CH Buchmiller shut down Bible studies in the barracks and attempted to preclude them in the housing area.
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j. CH Buchmiller was followed by Catholic CH Rock, who continued to vex the contemporary Non-liturgical service and at the same time tried to shut down an evangelical service at a nearby NATO base, despite the Navy’s obligation under Title 10 to provide for the free exercise needs of American military personnel assigned at Allied Forces South (AFSOUTH) (now Joint Forces Command) in Naples. Things did not improve under the successor Catholic command chaplain. k. The Naples NSA’s command’s policy toward the AFSOUTH congregation was to: (i) provide chaplains who had no theological or denominational identity with the congregation, (ii) provide no sustained chaplain ministry after CH Torralva left; (iii) rotate chaplains each Sunday who had no interest in the congregation; and (iv) ignore the requests of Non-liturgicals such as CH Dufour who volunteered to become the AFSOUTH pastor. See Poe, ¶ 16. l. Although the new Naples Chapel was constructed with a baptismal tub that allowed Non-liturgicals to immerse adults, the Catholic Command chaplain ordered that the water heater be deleted because “Protestants don’t need a heater.” This made the baptismal useless because of the cold Italian climate 161. The Navy has no procedures to identify specific Non-liturgical worship needs such as the Pentecostal/charismatic congregations at Naples, Italy, and Rota, Spain. Although these communities have been in existence for years, the Navy’s response to satisfying their worship needs has been active indifference and/or hostility. See Poe, ¶¶ 21-29. 162. In the early 1990s, the Command Chaplain at Guantanamo Bay, Cuba, attempted to suppress the 0730 service, a Non-liturgical charismatic service, “with the avowed goal of forcing its members to attend the ‘official’ Protestant service”, Exhibit 21, ¶ 2, contrary to the First
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Amendment. The congregation successfully petitioned the Base Commander, who allowed the service to continue. The CHC’s early removal of the congregation’s chaplain, who opposed the suppression, shows the CHC approved of the suppression. 163. The Navy and CHC has no system to identify or positively reward Non-liturgical chaplains who transform dead congregations into vibrant ones, or who “grow” congregations. Instead:
a. Those who have these skills have been punished by poor or inadequate fitness reports or marginalized, e.g., plaintiffs DeMarco, Stewart, Dufour, Wilder. b. The attitude of many command chaplains is “go to civilian churches for your ministry needs”, undermining the purpose of the CHC and showing disrespect for Nonliturgical faith groups for whom “community” and fellowship is an important part of their religious expression. 164. The above examples show how the Navy’s hostility to Non-liturgical DON members and their chaplains simultaneously violates the Establishment Clause and, by burdening their ability to practice their religion and faith, the Free Exercise Clause and RFRA.
COUNT 9 THE NAVY DISCRIMINATES AGAINST NON-LITURGICAL CHAPLAINS’
RELIGIOUS FREE SPEECH 165. The allegations contained in paragraphs 1 through 164 of the Complaint are incorporated herein by reference, the same as though pleaded in full. 166. The Navy’s discrimination against Non-liturgical chaplains and Navy personnel manifests unlawful disapproval of the religious speech that is inherent in their Non-liturgical tradition, practice and worship. 167. Following the distribution of RADM Iasiello’s “Chief of Navy Chaplains Official
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Statement on Public Prayer in the Navy”, the Secretary of the Navy signed SECNAVINST 1730.7C on February 21, 2006, formalizing RADM Iasiello’s “Official Statement.”
a. The SECNAVINST unconstitutionally established a Navy religion by defining acceptable and unacceptable religious words and concepts for chaplains to speak at ceremonies or other public events. ¶ 6.c. b. The SECNAVINST is a formal adoption of what had become an unofficial policy, e.g., numerous plaintiffs and members of the class, as well as chaplains outside the class, have been criticized or penalized for praying in accord with their faith traditions. c. The SECNAVINST illegally delegated to commanders authority to regulate or censor a chaplains prayer. ¶ 6. d. While the SECNAVINST stated a chaplain may elect not to participate in a ceremony that requires a non-sectarian prayer without reprisal, id. ¶ 6.c., the practical effect of such a provision is to undermine the chaplain’s role in the unit or chapel and to coerce the compromise of faith beliefs since a chaplain is rated on “team work” and not participating in such ceremonies is obviously not working on the team. e. Although Congress directed 1730.7C be withdrawn, the Chief’s “Official Statement”, the Chaplain School’s previous teachings restricting religious free speech at public ceremonies, reinforced by command chaplains’ hostility to evangelical Nonliturgical beliefs, have created a culture of hostility which still emphasizes “the Navy way to pray”, chilling plaintiffs’ free exercise and free speech rights. 168. The history of the above Navy polices and practices indicate they are response to the “heckler’s veto”, a concept the First Amendment forbids the Navy from adopting. 169. The Navy policy reflected in the SECNAVINST above is a radical departure from the
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Navy’s previous religious tradition and history and shows hostility to the Free Speech rights of Navy chaplains in general and to Non-liturgical chaplains in particular. From the earliest days of the Navy, chaplains prayed an “evening prayer.” In 1860, Congress passed what is now 10 U.S.C. § 6031, allowing chaplains to conduct services according to the church of which they are members, in response to questions whether prayers had to follow the Episcopal Common Book of Prayer, which had been the norm. Congress considered prayer to be the choice of the chaplain according to his faith tradition. 170. Senior liturgical and Catholic chaplains have criticized and/or retaliated against plaintiffs, e.g., Belt, DeMarco, Johnston, Rush, Thyrion, Torralva, and other Non-liturgical chaplains for preaching or following the tenants and traditions of their faith in violation of the Free Exercise and Free Speech Clauses, the provisions of 10 U.S.C. § 6031 which allows chaplains to conduct public worship according to the customs and norms of the churches of which they are members, and Naval Regulation 0817 which mirrors § 6031. 171. The persistent anti-Non-liturgical culture which produced SECNAVINST 1730.7C and the hostility it reflects violate the rights guaranteed by the Establishment, Free Exercise and Equal Protection Clauses, and RFRA.
COUNT 10 THE NAVY’S HISTORIC POLICY OF PROMOTING ONLY A “GENERAL PROTESTANT” TYPE OF SERVICE AND RESTRICTING OTHER FORMS OF NONLITURGICAL RELIGIOUS SERVICES VIOLATES THE FIRST AND FIFTH
AMENDMENTS AND RFRA 172. The allegations in paragraphs 1 through 171 above are incorporated herein by reference as though pleaded in full. 173. In violation of the First Amendment’s Establishment, Free Exercise and Free Speech
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Clauses, the Navy has historically tried to established a de facto liturgical or “high church” “General Protestant” religion. The Navy’s mandated liturgical “General Protestant” service, disfavoring “low church” forms of worship, has attempted to squeeze all non-Catholic Christian servicemen and women (high and low church) into a single liturgical worship mold, including personnel from plaintiffs’ Non-liturgical faith groups, while ignoring or actively hindering the religious needs of Non-liturgical personnel. 174. Navy senior chaplains have (a) removed some plaintiffs from preaching or conducting religious services solely because they were Non-liturgical chaplains, e.g., Belt, Wilder, and (b) have hindered, opposed or closed Non-liturgical worship services, e.g., Bailey, Lavelle, Stewart, Thyrion, even when such alternatives to a General Protestant Service were well attended and in many cases exceeded attendance at the liturgical General Protestant service. 175. Non-liturgical chaplains have been criticized and berated for preaching and teaching basic truths of the Christian faith, basic Protestant doctrine and their specific religious tradition, e.g., Belt, Blair, DeMarco, Dufour, Kirk, Stewart, Thyrion. See count 12. 176. Despite significant differences in theology and worship practices, the CHC treats all Nonliturgical chaplains as fungible. Plaintiff Dufour pastored the Naples, Italy, Non-liturgical contemporary Protestant worship service in which contemporary music and musicians were important parts. The Catholic command chaplain planned to replace CH Dufour with a Nonliturgical chaplain whose faith group did not allow using musical instruments in worship. Poe, ¶¶ 17-19. Despite CH Poe’s personal efforts to ensure the Pentecostal/Charismatic congregation had a like faith replacement when CH Gordy left, the CHC did nothing and no appropriate replacement chaplain for the congregation was provided. Id. ¶¶ 13, 22, 24-27. 177. The above examples show the Navy’s hostility to Non-liturgical DON members and their
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chaplains simultaneously violates the Establishment Clause and, by burdening their ability to practice their religion and faith, the Free Exercise Clause and RFRA.
COUNT 11 CONSTRUCTIVE DISCHARGE OF CERTAIN PLAINTIFFS 178. The allegations in paragraphs 1 through 177 above are incorporated herein by reference as though pleaded in full. 179. The Navy’s failure to provide objective criteria for measuring chaplain performance in its fitness reports allows supervisory chaplains and commanders to use subjective criteria unrelated to chaplain ministry, which facilitates discrimination. 180. The CHC has created a hostile environment, see, e.g., Counts 2-5 and 10, and has used the realities of the up or out promotion system and separation process to make working conditions intolerable for many of these plaintiffs and other Non-liturgical chaplains who (i) after being FOS, left the Navy rather than endure more hostility, abuse, family stress, and humiliation; (ii) when eligible, chose to retire under the TERA or other programs lest they be separated from the Navy with nothing; or (iii) left with no reasonable alternative except to leave the active Navy or retire. Such separations or retirements were coerced and/or the products of hostile environments and constitute constructive discharges. 181. All plaintiffs who had to retire due to FOS because of statutory time in service or grade limits and the following plaintiffs claim constructive discharge: Blair (95), DeMarco (99), Heinke, Frank Johnson, Klappert, LaValle (98), Nichols (TERA), Quiles, Rush, Spalding (TERA), Swanson (TERA), Watson (TERA), Wilson (TERA).
COUNT 12 ILLEGAL RETALIATION
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182. The allegations in paragraphs 1 through 181 above are incorporated herein by reference as though pleaded in full. 183. The Navy and/or CHC has sought to illegally retaliate, punish, harm or otherwise deprive some of these plaintiffs because they exercised their constitutional, statutory and regulatory rights and objected to burdens on their career opportunities.
a. Such retaliation and its harmful consequences are in response to plaintiffs’ exercise of their rights in bringing this lawsuit and/or previously defending their right and responsibility to represent their faith group and meet the religious needs of Non-liturgical DON personnel, or exposing CHC or Navy misconduct, prejudice, bias, illegality and duplicity. b. Whether the retaliation was the result of individuals acting on their own or responding to real or imagined slights, denominational bias, “payback” for exposing wrongdoing, or advancing the CHC’s policy or protecting its pro-liturgical culture is immaterial because the officials so acting were acting in their capacity as naval officers, the Navy and the CHC was aware of the potential for abuse of delegated powers and denominational bias, and failed to prevent or remediate such retaliation or abuse. 184. The following are specific examples of retaliation. a. CH Arnold. The CHC and Navy retaliated against CH Arnold because he and another chaplain interceded with the commanding officer at Mayport, FL to have CH Eis, the Catholic command chaplain psychologically evaluated for his fitness for service because of Ch Eis’s strange behavior. Catholics accused CH Arnold of having “destroyed Charlie’s career.” Subsequently, an acquaintance notified CH Arnold that CH (CAPT)
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Oddo, a Roman Catholic, made a comment at a Senior CHC leadership19 meeting that “There is no place in the navy for Rich Arnold.” The CHC failed to select CH Arnold for CDR. Given the Navy’s policy of reserving a promotion board seat for Catholics coupled with the challenged secret “zeroing out” procedures, it is apparent the CHC retaliated against CH Arnold for attempting to help CH Eis or slighting a Catholic. b. CH Belt. The Navy and its CHC officials retaliated against CH Belt in numerous ways because of his actions representing his Non-liturgical faith group. Originally endorsed as a liturgical United Methodist, CH Belt switched his endorsement to the Nonliturgical Church of the Nazarene before entry on active duty. While stationed on Okinawa from 1991 to 1993, his Liturgical Protestant rating chaplain gave him a poor fitness report after CH Belt failed to support his rater’s selling tickets to the rater’s prayer breakfasts. This same Liturgical Protestant reprimanded later CH Belt for preaching that men who call themselves Christians should live as Christians and gave CH Belt a low mark on his fitness report.
Assigned to the Navy’s San Diego Medical Center, his Catholic Command chaplain (i) excluded CH Belt and the other Non-liturgical chaplains from decisions and meetings that affected him and other chaplains until after decisions had been made at exclusively Liturgical chaplain meetings; (ii) gave Catholic and Liturgical Protestant chaplains with poor work output higher fitness reports than CH Belt and other Non-
19 Catholic Chief RADM O’Connor allegedly began the practice of having Catholic chaplains meet regularly meet and discuss what was happening. It has been reported the frequent meetings of Catholics during which incidents of perceived actions against Catholic interests were exchanged. The presence of a Catholic on every board and the secret voting procedures enabling one member to zero out a candidate ensured any action against a Catholic could have career implications and any perceived offender of Catholic interests would not receive a fair hearing.
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liturgicals who carried the work load. This resulted in CH Belt’s non-selection for promotion to LCDR by the fiscal year (“FY”) 1999 and 2000 chaplain promotion boards.
The Navy and CHC further retaliated against CH Belt for becoming a plaintiff in this litigation. As a result of injuries received on active duty complicated by Navy medical malpractice, CH Belt became an invalid, walking only with great difficulty and pain. Although having started the process for a medical board to evaluate the CH Belt for medical retirement, the Navy, separated CH Belt for FOS in March 2006 before completing the medical evaluation board causing CH Belt and his family great distress and hardship. c. CH Byrum. The Navy and CHC retaliated against CH Byrum by selecting him for involuntary retirement through the FY96 SERB ,effective July 31, 1996, before he was considered for promotion to CAPT, while retaining numerous chaplains who had multiple FOS to CAPT and CDR and little time remaining for service. For example, the chaplain with the most FOS (CH Palmer) had about one year active service left, contrary to the Secretary’s SER retention criteria emphasizing future potential for service.
CH Byrum believes the CHC selected him SER because his outstanding record as a Non-liturgical chaplain and his prior service was a threat to the Liturgical domination of the CHC. In other words, the CHC liturgical hierarchy retaliated against him because his competence and effective ministry were a threat to the liturgical leadership. d. CH Carson. The Navy and CHC retaliated against CH Carson for changing her endorsement from United Methodist to CFGC by the CHC’s (i) unreasonable delay and changes in bringing her to active duty after her endorsement change and after she had quit her civilian job based on a specific reporting date and ship assignment (USS Simon Lake)
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that the CHC had previously given her as a United Methodist; (ii) giving her assignments that made her non-competitive for promotion; failing to select her for promotion to LCDR; and (iii) causing economic and other injury by unreasonably delaying her discharge orders and interfering with her opportunity to seek commissioning in the Army Chaplains Corps. e. CH DeMarco. The Navy and CHC retaliated against CH De Marco by placing him at Naples under a Catholic Command chaplain with an established record of discrimination against Non-liturgicals, a known career ending assignment for Nonliturgicals. The Command chaplain, CH Buchmiller, criticized CH De Marco for ending his prayers “in Jesus name”. When CH De Marco insisted on praying in accordance with his beliefs and religious tradition as allowed under Navy regulations and federal statute, CH Buchmiller promised to end his career, rated him in a way that made him noncompetitive for promotion, and forced CH DeMarco to retire early. This rating was based on faith group prejudice and bias and deliberately ignored CH De Marco’s service and the fact that the had grown the Naples Protestant congregation from 25 to over 200, making it the largest Protestant worshiping community in the Navy in Europe. His evaluation also ignored the large corresponding increases in the religious education and children’s programs due to CH De Marco’s efforts. f. CH Doney. The CHC retaliated against CH Doney the first time in 1971, denying him a chaplain’s appointment because he was a graduate of Bob Jones University. It further retaliated against him by denying his many requests for active duty and failing to promote him to LCDR on active duty and to CDR in the Reserves, despite numerous short term active duty assignments. CH Doney believes his FOS was retaliation by the Catholic member of the board because he baptized a woman who asked to be baptized by
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immersion on one of his short tours to Adack Island in the Aleutians to meet a need for a Protestant chaplain. The Navy base’s Catholic priest accused CH Doney of stealing sheep because the lady occasionally attended Mass. The frequent meetings of Catholics and presence of a Catholic on every board ensured he would not receive a fair hearing, either on active duty or in the Reserves. g. CH Dufour. CH Dufour complained to his Congressman about the prejudice and oppression against Non-liturgical DON personnel at Naples, Italy. His Catholic Senior Chaplain, CAPT Rock, the cource of oppression, retaliated with a poor fitness report. The succeeding Naples command chaplain, Catholic CH (CAPT) Malene, unjustifiably denied CH Dufour an end of tour award for his work in Naples and then called his new command chaplain, Catholic CH Keane, to give CH Keene a bad report on CH Dufour. Although CH Keene has praised CH Dufour’s work, he told the USS NIMITZ’s commander CH Dufour was not ready for promotion to CDR, although he provided CH Dufour no counseling about performance shortcomings. After a lengthy discussion, the NIMITZ commander told CH Dufour, “When you’re labeled ‘damaged goods’, there’s not much you can do about it.” h. CH Hamme. The Navy and CHC retaliated against CH Hamme by not selecting him for LCDR in 1991 and 92 because of his Non-liturgical denomination’s beliefs combined with his status as a Naval Academy graduate, excellent record as a Marine aviator, outstanding reports as a chaplain LT where he was placed in a LCDR billet supervising other LTs, his selection by the CHC for post-graduate education in an exclusive and very prestigious program, and the quality of his record as indicated by the Deputy Chief of Chaplain’s report to the GAO following his first FOS, made him a threat
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to the liturgical hierarchy. i. CH Harkness was illegally denied affiliation with a Reserve unit when he left active duty after confronting through the Inspector General the CHC’s denial of information about his post- graduate school follow on assignment. He subsequently filed a complain against the misrepresentation of witnesses by the investigating officer. The NIG concluded the CHC had unlawfully withheld his affiliation, but did not remedy his lost time or pay. He was denied promotion to CDR in the Reserves because an openly hostile chaplain was on his selection board, but was subsequently promoted after filing a complaint. After selection for an active Reserve assignment in Europe, he was denied active duty for training despite being picked for such a position by the APPLY board, the Europan command’s request for him and existence of the need. The Navy then reorganized his unit, eliminating his active duty billet and retaining all others in pay billets except him. CH Harkness was illegally denied promotion to Captain by the FY07 selection board composed contrary to Regulations, a fact the Navy recognized only after he filed suit. j. CH Heinke. The Navy and CHC retaliated against CH Heinke by using the secret selection board procedures to ensure CH Heinke was FOS to CDR in FY93 and 1994. The retaliation was instigated by (i) the Chief, RADM White, because Gen. Krulak, Commandant of the Marine Corps, liked CH Heinke, respected both his ministry, administrative and leadership skills and intervened to keep CH Heinke at Quantico after the liturgical Command chaplain was relieved for cause and misconduct; (ii) because CH Heinke was one of three Non-liturgical chaplains at Quantico who were instrumental in bringing stability after the Quantico liturgical Command chaplain was relieved and Gen.
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Krulak placed them in positions of authority rather than senior liturgical chaplains; and (iii) CH Heinke’s stellar record indicated he was a potential threat to the continued and future CHC liturgical leadership. CH Heinke’s FOS was RADM White’s perverted means of retaliation against LTG Krulak and the Liturgical hostility toward successful evangelicals like CH Heinke.
The CHC further retaliated further by assigning liturgical CH Mike Burt as the command chaplain at Quantico with the mission to make sure CH Heinke did not get promoted after his first FOS. CH Burt marked down CH Heinke’s fitness report one letter grade, ensuring CH Heinke would not be selected. k. CH Frank Johnson. The CHC retaliated against CH Johnson for the testimony he gave to DOD IG and NIG investigators under oath concerning the FY97 Chaplain CDR promotion board for which he was the recorder. The investigators were examining denominational prejudice and misconduct allegations on the FY97 and 98 Chaplain CDR boards. He was considered for promotion to CAPT and FOS subsequent to his testimony. Because of his outstanding record as compared to others who were selected, there is no explanation for his FOS other than retaliation for providing embarrassing information about the board. l. CH Mark Johnston. The CHC retaliated against CH Johnston by not allowing him to continue past his initial three year tour (1987-80) because of his charismatic, Nonliturgical faith as reflected by his CFGC endorsement. The 2d Marine Division Command liturgical chaplain, CH Krabb, evidenced this discriminatory motivation and hostility by describing CH Johnston as a member of a “splinter sect” and telling him, “You preach the Gospel too much”, berating him, speaking demeaningly about Charismatic ministry in
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training sessions and saying those who believed what Charismatics believed could leave the ministry. CH Krabbe became very jealous of CH Johnston’s local radio ministry that he performed off duty and off post, and made sure CH Johnston was not allowed to continue on active duty despite excellent fitness reports from his Marine Battalion Commander. m. CH Kirk. The CHC retaliated against CH Kirk through his Catholic command chaplain, CH O’Brien, who gave CH Kirk poor fitness reports because he increased chapel attendance by 50% resulting in he assignment to another chapel where he again increased attendance. Catholic CH O’Brien gave superior ratings to other Catholics but graded down CH Kirk and other Protestants for no just reason. n. CH Klapach. The Navy allowed Catholic CH Kuhn, as a board member, to retaliate against CH Klapach for leaving the Catholic Church and becoming a Nonliturgical Pentecostal in the Assemblies of God faith group when CH Klapach was an enlisted sailor and CH Kuhn was his former Catholic priests. The retaliation continued after he was promoted to CDR when (i) the CHC denied him promotion to CAPT after he objected to being placed under a junior Catholic chaplain by his Catholic commander at the Puget Sound Naval Shipyard and (ii) the CHC selected him for SER. o. CH Klappert. CH Klappert believes the CHC and Navy retaliated against him because of his involvement in the events surrounding the relief of the Quantico command chaplain for misconduct and his opposition to religious oppression by liturgical chaplains at Quantico and other places. Assigned to the Portsmouth Naval Yard after Quantico, he experienced great difficulty with a female organist and music director who caused division in the congregation and other problems. She filed a filed a complaint alleging
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discrimination and harassment against CH Klappert before he could terminate her. A civilian judge found the allegations unsupported and dismissed them but the Navy continued to investigate the charges. The resulting investigation only interviewed six of the 16 witnesses CH Klappert submitted who would verify the falsity of the allegations and perverted the testimony of those who had made statements so the meaning was entirely opposite to the witnesses’ testimony. It became apparent to CH Klappert that his commander had been told supporting CH Klappert was not in the base commander’s career interests and faced with financial ruin should he continue to fight the allegations, he resigned. p. CH Kohlmann. The CHC retaliated against CH Kohlmann by failing to select him for LCDR for expressing his view of certain subjects based on his understanding of scripture as evidence by his CAPT senior chaplain that “the Navy CHC did not need any prophets” and “this was Navy CHC policy,” not just the senior Chaplain’s. q. CH Lancaster. The CHC and Navy retaliated against CH Lancaster deliberately or through gross indifference and incompetence by obviating his four attempts to make sure his record was complete before being considered by the FY 97 CAPT board as described in his individual description of his background and harm. The Navy lied to him about the completeness of his record when he asked prior to the board and subsequent boards. This retaliation was in response to his strong record which presented a strong threat to the CHC’s Liturgical leadership. His protected activity was preaching and ministering in accord with his faith group in such a way that commanders and other personnel recognized his competence, sincerity, integrity and devotion to duty and provided fitness reports that showed he was entitled to promotion.
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r. CH Looby. The Navy retaliated against CH Looby by the FY03 CAPT board’s failure to select him despite his outstanding record. The CHC and RADM Iasiello allowed a rumor to circulate among the CHC leadership that he had been injured on active duty, was ineligible for promotion and had performance problems. s. CH Marsh. The CHC and Navy retaliated against CH Marsh by failing to select him for LCDR. The basis for the retaliation was explained by his initial Command chaplain, who stated that CH Marsh was “the wrong sex, the wrong color and the wrong religion.” The CHC’s retaliation was further in response to beginning an alternative Nonliturgical worship service with two other Non-liturgical chaplain LTs, Michael Lavelle and Robert Yourek, that became very successful despite being restricted by the command chaplain to an unreasonable time (7:00 am) and still being required to participate in the liturgical General Protestant service.
The CHC retaliated further through CH Ha who (i) created conflicting schedules between CH Ha’s demands and CH Marsh’s unit commander’s requirements and (ii) expected CH Marsh to support CH Ha rather than his CO. CH Ha promised CH Marsh he would make sure CH Marsh would never be promoted and explained that chaplain promotion boards, controlled by Liturgical chaplains, were tools to keep Non-liturgical chaplains in line and subservient to the senior chaplains rather than their unit commanders to whom they were assigned and accountable for ministry. This is another example of the well known CHC’s truism, “the line may rate you, but the CHC promotes you” and it would not allow any challenge to its corruption.
The CHC further retaliated by assigning CH Marsh to the USS BELLEAU WOOD under fraudulent circumstances, involuntarily placing him on a two year tour separated
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from his family after his FOS and delaying his separation for no legitimate reasons except to harm him further. u. CH Denise Merritt. The CHC and Navy retaliated against CH Merritt by assigning her to serve under CH Jane Viera, who despised Non-liturgicals, and failing to select her for LCDR. The motivation for retaliation was CHC hostility to her Charismatic faith and her involvement in the circumstances surrounding the relief for cause and misconduct of the liturgical Command chaplain at Quantico, VA. She was one of three Non-liturgical plaintiffs, see CHs Heinke and Klappert supra, against whom the CHC liturgical leadership retaliated because Gen Krulak relieved the liturgical Command chaplain and relied on Non-liturgical chaplains to restore effective ministry to the base. CH Merritt ministered to the relieved chaplain’s battered wife. At Bethesda, CH Merritt’s fitness reports cited shortcomings for which she had received no prior notice or counseling, and her efforts to correct or challenge the ratings were ignored or rebuffed. v. CH. Mitchell. The CHC and Navy retaliated against CH Mitchell by not selecting for CDR despite his outstanding record and career through RADM Iasiello, the president of the 2001 CDR board. RADM Iasiello, when director of the Chaplain School, had supported a female chaplain candidate’s unsupported and false allegation that Dr. Mitchell had sexually harassed her during an interview required for the chaplain commissioning program despite an investigation proving his innocence. Then CAPT Iasiello indicated to CH Mitchell that he believed the allegations and would find a way to end Dr. Mitchell’s career, a promise he kept. w. CH Moreno. The CHC and Navy retaliated against CH Moreno because his Catholic command chaplain CAPT Rock thought CH Moreno, a Hispanic pentecostal,
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should have been Catholic because he was Hispanic. This retaliation took the form of a series of degrading and insulting incidents. CH Rock gave CH Moreno fitness reports that made him non-competitive for CDR. CH Moreno has FOS to CDR numerous times. No pentecostal chaplain who worked for CAPT Rock has been promoted. CH Lesak, another Catholic command chaplain who followed CH Rock told CH Moreno, “I don’t want anything to do with you because you have been passed over” and treated CH Moreno with disrespect and disdain, further insuring CH Moreno would never be promoted. x. CH Nichols. The CHC and Navy retaliated against CH Nichols because he changed his endorsement from the United Methodist Church (UM), a Liturgical denomination, to CFGC, an endorsing agency for charismatic Non-liturgical churches and fellowships, just before the FY93 CDR promotion board. This is evident by RADM Muchow’s visit to Whitby Island, Washington, after CH Nichols changed his endorsement to CFGC. RADM Muchow upbraided CH Nichols because he did not believe in infant baptism. This was confirmed by a senior Methodist chaplain who the UM endorser had asked by to contact CH Nichols. The UM senior chaplain said, “You understand what its all about, don’t you? It’s all about accessions. The more evangelicals [i.e., Nonliturgicals] on active duty, the fewer Methodists get on active duty.” y. CH Roman. The CHC and Navy retaliated against CH Roman by failing to select him for LCDR because he challenged the CHC’s favoritism and the CHC leadership’s animosity against his endorsing agency, CFGC, for suing the Navy over its religious prejudice and his challenge to the preference given to FOS Catholics in retentions and promotions. After learning CH Roman was endorsed by CFGC, his command chaplain said, “Oh, you’re one of those troublemakers,” referring to the fact that CFGC had sued
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the Navy over religious discrimination. CH Roman filed an official complaint on the USS KITTY HAWK because a Catholic priest allowed to remain on active duty despite numerous FOS was selected for promotion to LCDR. z. CH Roysden. The CHC and Navy retaliated against CH Roysden by denying his selection for CDR in FY 98 because he was Charismatic, he challenged his Catholic Command chaplain at San Diego Medical Center, CH Young, and filed a complaint against CH Young for retaliation. Just before leaving Japan for his first sea tour, the Pacific Fleet Chaplain visited his ship and informed its captain CH Roysden belonged to an unknown faith group and the Fleet Chaplain expected that CH Roysden would have to be replaced in a few months. Other Navy chaplains told him he had made a mistake changing his endorsement from Methodist to CFGC and that it would hurt his career if he did not get out of “that group.” His senior chaplain at Pearl Harbor, commenting on those who attended a Charismatic service on the base, told CH Roysden that, “People who believe like that have no place worshiping on base and chaplains from those groups shouldn’t even be in the Navy.”
At San Diego Medical Center, CH Roysden’s Command chaplain Catholic CAPT Dave Young placed junior liturgical chaplains in jobs to which CH Roysden should have been assigned, always ranked Catholic chaplains number one despite their demonstrated incompetence, awarded higher ratings to less qualified Catholic and liturgical chaplains and disregarded or frustrated the efforts of other commanders or responsible staff personnel to recognize CH Roysden’s outstanding service in very difficult situations, e.g., Korean Airlines crash on Guam, and retaliated when CH Roysden objected. CH Young further retaliated by removing CH Roysden as deputy and other positions of all authority
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because CH Roysden provided counseling to a female chaplain who raised allegations of sexual harassment with EO against CH Young, The EO investigation later validated CH Roysden’s allegation of reprisal.
The Navy further retaliated by denying CH Roysden a complete and unbiased investigation of his retaliation complaint against CH Young. The investigator investigating CH Roysden’s allegation of CH Young’s retaliation, failed to interview CH Roysden’s corroborating eye witnesses, allegedly on orders from someone responsible for supervision of the investigation.
The Navy further retaliated against CH Roysden by denying his 2002 request to the Board of Correction for Naval Records concerning his FOS. The BCNR said it recognized the appearance of discrimination, retaliation, and a hostile work environment, but it felt these did not impact his fitness reports and his chances for promotion, an absurd statement on its face. aa. CH Scott. The CHC and Navy retaliated against CH Scott by placing him in noncompetitive billets and denying him promotion to CDR because he expressed a theological view point, his belief in demons, his treatment by his senior liturgical chaplain, CH Hier, and his filing a UCMJ Article 138 complaint against Ch Hier for ordering a psychiatric evaluation because CH Scott had mentioned demons in a private conversation. bb. The Navy retaliated against CH Stewart by giving him low fitness reports, short notice reasignments and denying his selection to CDR because: (1) he refused to reveal confidential communications about problems in his command and thier information sources while assigned to the Coast Guard; (2) he prayed according to his faith tradition and objected when told to stop while assigned to Great Lakes Naval Training Center; (3)
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he joined the chaplains’ lawsuit and became active in CHC reform efforts; (4) he testified in support of proposed legislation reversing a Navy regulation restricting sectarian prayer; and (5) spoke publicly about Navy prejudice against Non-liturgicals. cc. CH Thompson. The Navy and CHC retaliated against CH Thompson by failing to select him for CDR in 1991-92 because he sought to address leadership problems, and the divisive practices and non-cooperation of the junior Catholic chaplain, CH Danner, on the battleship USS Iowa. He sought guidance from his command chaplain who then reported CH Thompson’s effort to the Iowa’s Catholic CO who then reprimanded CH Thompson. The Navy’s retaliation is further evidenced by the CO making junior Catholic chaplain, CH Danner, co-command chaplain on the Iowa contrary to Naval regulations and tradition, and other incidents and humiliations by the Iowa’s CO. The Navy’s prefferential treatment of CH Danner, despite his receiving an official Letter of Reprimand for attacking the Iowa dependant survivors, while failing to select CH Thompson for CDR shows the influence of the liturgical CHC leadersip and Catholic controlof the promotion process. dd. CH Thyrion. The Navy retaliated against CH Thyrion because of his Nonliturgical faith by assigning him to Bethesda Naval Hospital where his command chaplain was CH Joan Vieira, a female, Liturgical Protestant with a reputation for hostility towards male and Non-liturgical chaplains. CH Vieira fought every attempt by CH Thyrion to minister to the sailors, marines and families assigned to the Hospital, criticized CH Thyrion because he was “too Christological,” i.e., too centered on Christ, and preached too long. CH Vieira undercut CH Thyrion’s stature and status within the chapel community through such things as telling jokes to the congregation about an “incompetent male
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preacher” just before he was to preach. As justification for giving him low fitness reports, CH Vieira told CH Thyrion, “you’re talented and could make much more money as a civilian.” This assured his FOS to LCDR in 1999 and 2000, despite his excellent record prior to CH Vieira and his selection to postgraduate school. ee. CH Torralva. The Navy retaliated against CH Torralva by failing to select him to CDR by the FY99 CDR Board and numerous other incidents which guaranteed his continued FOS. The basis of the first retaliation was his religious faith group, his Spanish ethnic background which offended many Catholic chaplains, and his outstanding record which included chaplain for the Marine One Squadron which flies the presidential helicopters, his selection for post graduate school and being scheduled to fill a CDR’s billet at COMFAIRMED Headquarters in Naples, Italy, immediately before his first FOS. At COMFAIRMED, he inspected command religious programs as part of his responsibilities. He caused controversy when he corectly reported problems in programs and chapels run by Catholic command chaplains. In response to a directive from his superiors, CH Torralva, also reported serious leadership problems at Naval Support Activity (“NSA”), Naples, under CAPT Buchmiller, the Catholic Command chaplain, including anti-evangelical attitudes and prejudice. Shortly afterwards, the Navy reassigned CH Torralva to NSA, working under CAPT Buchmiller, the same Catholic Command chaplain he had reported for poor leadership. CAPT Buchmiller’s Catholic replacement, CAPT Rock, did not use CH Torralva as the Naples Deputy Command chaplain although he was the next senior chaplain as is the Navy’s custom and practice.
CH Rock criticized CH Torralva’s Spanish heritage and further retaliated against CH Torralva because he resisted CH Rock’s efforts to close a Non-liturgical, evangelical
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congregation at AFSOUTH, a NATO community in Naples the Navy was required to support.
The NSA Commander and CH Rock further retaliated against CH Torralva because he mentioned in a sermon on parental responsibilities the NSA CO was planning to open a teen-clinic to dispense birth control without the NSA parents consent or knowledge. The revelation embarrassed the CO because the COMFARMED Command and NSA community was not aware of the plan. Buchmiler and Rock gave CH Torallva low fitness reports. ff. CH Tostenson. The Navy and CHC retaliated against CH Tostenson because he reported his Patuxtant Naval Air Station Catholic Command chaplain, CDR Carl Drake, for violating a court’s non contact order after CDR Drake’s adopted son filed child molestation charge against CDR Drake. CDR Drake was subsequently court-martialed for violating the court order. The Navy’s policy of reserving a selection board seat for at least one Catholic allowed the Catholic network to retaliate against CH Tostenson. gg. CH Twamley. The Navy retaliated against CH Twamley by failing to select him for promotion by the FY99 and 00 CDR boards. The retaliation was based on his endorsement by the Assemblies of God, a pentecostal denomination. At least one of the board members had a reputation of hostility toward pentecostal chaplains; only one of five pentecostal chaplain promotion candidates was selected in FY99 and he was a minority. hh. CH Watson. The Navy retaliated against CH Watson by failing to promote him to LCDR because he offended the 6th Fleet Catholic chaplain when a religious program specialist who knew a high ranking Catholic Cardinal in Rome invited the Cardinal to visit the ship when it made a port call at Naples, Italy. The Navy further retaliated against him
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by discharging him in 1993 before the Physical Evaluation Board was complete after treatment for a medical condition requiring surgery that precluded his further service. ii. CH Wilder. The Navy and CHC retaliated against CH Wilder in numerous ways that resulted in his failure of selection to CDR in 1999 and 2000 and then kept his record uncompetitive. In Okinawa in June 1992, CH Williams, a Liturgical superior not in CH Wilder’s chain of command, told CH Wilder to change his Non-liturgical worship service into an Episcopal service, which was completely foreign to his religious tradition and individual faith. When CH Wilder did not, CH Wilder’s supervisory chaplain then allowed Episcopal CH Williams to “fire” CH Wilder in front of CH Wilder’s Nonliturgical Baptist congregation. CH Williams complained when CH Wilder started his own Baptist service that grew larger than CH Williams’s Episcopal service and promised he would make sure CH Wilder would never get promoted above LCDR. CH Wilder testified other chaplains asked questions about what happened on Okinawa, showing CH Williams had attempted to ruin CH Wilder’s reputation in the CHC to make sure he was not promoted.
After the Adair litigation was filed and following and CH Wilder’s appearance on Fox News describing his own religious prejudice experience, the Navy and CHC further retaliated against CH Wilder . The Catholic acting command chaplain, CH Scordo, improperly reassigned him from a CDR billet to a LTJG position and gave him other demeaning duties and a damaging fitness report. CH Scordo said he was following orders from an unnamed superior. CH Wilder filed an IG complaint against CH Scordo for retaliation which whitewashed the reassignment. jj. CH Wilson. The Navy and CHC retaliated against CH Wilson by not selecting
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him for CDR because in 1983 he filed a religious discrimination charge against a liturgical command chaplain and then would not change the claim to racial discrimination as his superior chaplains urged him. They told CH Wilson that if he expected to make the Navy a career, he should drop his religious discrimination charge or change it to a racial discrimination charge. On principle CH Wilson refused to do so. The CHC further retaliated against him because he changed his endorsement to CFGC in 1986. kk. CH Xenakis. The Navy and CHC retaliated against CH Xenakis by filing to select him for promotion by the FY96 and 97 CDR Selection Boards. The retaliation was based on the animosity of senior Catholic chaplains because he failed to join an effort by two Roman Catholic chaplains to their attempt to get the senior chaplain, a Methodist, relieved for cause. He was warned by one Catholic he would be remembered as “not a team player.” The CHC further retaliated against him because he rejected taskings and guidance from the Chief and the Chief’s office that were at sharp variance with those of his own command which was located close to the Chief’s Office in Washington, DC. 1856. The above do not purport to cover all incidents of retaliation within the class or among the plaintiffs. 186. The above policies and actions violate plaintiffs’ constitutional and statutory rights and Navy and DOD regulations.
COUNT 13 FRAUDULENT CONCEALMENT OF AND/OR ILLEGALLY COVERING UP THE
EVIDENCE OF PLAINTIFFS’ CAUSES OF ACTION 187. The allegations in paragraphs 1 through 186 above are incorporated herein by reference as though pleaded in full.
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188. All selection board members and support personnel take an oath not to divulge the board proceedings unless he or she is released from that oath by the Secretary of the Navy or “higher authority”. This secrecy is reinforced by regulations, the Uniform Code of Military Justice, and statute. 189. The records of personnel being considered by promotion boards are protected from disclosure or exposure. A chaplain who is not selected by a promotion board cannot compare his personnel file and fitness reports with those of chaplains who have been selected, or know for certain which selectees met promotion considerations or criteria. 190. The causes of action for violations of plaintiffs’ rights in and through the chaplain promotion and SER process are self-concealing.
a. The secretive and restrictive nature of the Navy promotion system ensures that misconduct or illegality in the chaplain selection board process is easily concealed from the victims and other outsiders. This is shown by the DOD and NIG investigations into the FY 97-98 chaplain CDR promotion boards, the FY00 CAPT board and the FY08 CAPT board. b. Any challenge to the “perception” of misconduct in the promotion process would have to overcome the presumption of regularity, which would in most cases be impossible, given the secret nature of board proceedings. c. The ability of the Chief, senior chaplains and the Navy to retaliate against “whistle blower” board officials is a further disincentive to bring wrongdoing to light as shown by the fact all investigations of chaplain board misconduct have originated from outside the board, although board personnel report misconduct when asked by investigators. See also ¶ 202 infra.
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191. The policy allowing the Chief to approve all chaplain promotion board members, a power he still has, and his power to retaliate or stifle dissent minimizes the probability board misconduct or other acts of favoritism would/will be brought to light, such as when a board president champions certain candidates for reasons other than the candidates’ records, when faith group has became a promotion consideration, or improper criteria were considered. The DOD and NIG investigations into the FY97 and 98 chaplain CDR promotion boards provide evidence the system concealed these improprieties. 192. The Navy, and the CHC in particular, has lied to, misrepresented, or otherwise misled plaintiffs and others who have raised questions about the appearance of quotas, faith group prejudice, and/or the fairness or objectivity of the chaplain promotion and SERB processes. 193. Senior CHC officials have consistently maintained that faith group has no part in chaplain promotions, holding all chaplains, regardless of their faith group, compete for promotions on a level, merit based, playing field. These senior chaplains have known that (a) faith group was a promotion factor and some promotions were based on denominational considerations; (b) personal knowledge of the candidate or other non-merit based criteria was more important than military performance for CHC promotions; and (c) the chaplain promotion and accession process has been manipulated to ensure liturgical domination of the CHC. 194. Senior CHC officials have falsely maintained that all chaplain records are highly competitive, inflated with high marks, even one or two low marks, i.e., “B” or “C” (old system) or a “2" (new system), can make a chaplain uncompetitive, and only the most competitive are selected. However, the Stafford Report (Exhibit 18) shows that Catholic and Liturgical Protestant chaplains with many “Bs” and “Cs” were selected while testimony from plaintiffs has shown many chaplains with far better records, with no “Bs” or “Cs”, including some plaintiffs, were not
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selected. 195. Some senior CHC officials have conspired among themselves and others, knowingly or unknowingly, to deny or suppress the rights of plaintiffs and other Non-liturgical chaplains by depriving them information which confirm religious preferences, denominational prejudice and promotion board misconduct.
a. To accomplish this, these senior chaplains and other Navy officials have concealed and denied evidence of prejudice and bias in the selection process against plaintiffs, including the Navy’s faith group quotas. b. The Navy and CHC actions in concealing and denying the existence of its denominational preferences and prejudice against plaintiffs and other Non-liturgicals illegally concealed the basis for plaintiffs’ constitutional and statutory claims and tolled all applicable statutes of limitation until plaintiffs discovered the basis for their claims. 196. Senior CHC officials have a duty to: (a) report misconduct and denominational favoritism, and (b) reveal the true nature of and prejudice in the Navy’s promotion and other career related systems to plaintiffs and all other class members who have raised questions about the fairness and equity of the promotion process. CHC and Navy officials have breached that duty. a. Senior CHC and DON leadership have known of the abuses and prejudice reported herein, but refused to address or take corrective measures and are defending the illegal policies. b. The NIG, Judge Advocate General (JAG), Navy senior chaplains and leadership have covered up, excused or ignored the abuses described herein despite ample indications of denominational considerations affecting chaplain promotions and other personnel actions.
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c. The Navy has developed a culture where coverup is more important than its duty to see the law and regulations are followed and misconduct is addressed. d. The BCNR process to which some of these plaintiffs appealed is another vestige of the Navy’s deceptive system which suppresses the truth. 197. The above actions by the Navy constitute fraudulent concealment which has prevented plaintiffs and the class from discovering the Navy’s illegal prejudice and actions which form the basis for these plaintiffs’ causes of action.20 The self concealing nature of the promotion system and/or the Navy’s fraudulent concealment has precluded Plaintiffs and their class from seeking timely redress and tolled any statute of limitations. 198. The following plaintiffs especially challenged their FOS or SER, sought clarification or information as to their reasons for FOS and/or SER and/or challenged the fairnes and integrity of the promotion process. In every case they were provided false, misleading or no information and assured the Navy was a keeper of the law and continually practiced the virtues of honor and integrity: Blair, Bradley, Byrum, Demy, Hatch, Lancaster, Marsh, Rush, Weibling. 199. CH Weibling’s testimony concerning his attempt to obtain information about the fairness and integrity of the promotion is typical of such inquiries. After his FOS he called the Detailer, CH (CAPT) Bourke to ask for career advise. CH Bourke provided four reasons that later proved to be false, including “all ‘A’ grades and recommendations for early promotion was typical for nearly all chaplains.” He assured CH Weibling the system operated in a fair manner for all and many stellar performing officers with circumstances similar to his were being released from active duty. CH Weibling could not find any chaplains who would verify that the CHC allowed board manipulation. CH Weibling questioned RADM Muchow about the ability of the Chief to
20 See note 3 supra. 99

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influence board decisions at a Reserve Chaplain’s conference in 1998. The Chief assured CH Weibling that he knew of no such practice and affirmed the fairness of the boards. Only after CH Weibling saw the Stafford Report did he realize RADM Muchow and the CHC had lied and deceived all. CH Weibing has testified that the Navy frustrated his efforts to obtain further information about board misconduct through FOIA. 200. Plaintiffs have exercised due diligence in attempting to protect their legal rights. The Navy’s deception and actions in concealing its prejudice and other illegalities, the presumption of regularity and the self-concealing nature of the Navy’s board processes have prevented plaintiffs from gaining the necessary information and evidence to bring their claims until the CFGC and Adair law suits breached the CHC promotion system’s walls of secrecy and deceit. 201. Since discovery of the CHC and Navy misconduct and illegal actions, plaintiffs have acted in a timely manner.
a. Twenty-three of these Plaintiffs sought to join the Adair class action. b. When the Adair plaintiffs could no longer represent active duty personnel, the Gibson plaintiffs filed to become a class, overlapping the Adair class action, providing all plaintiffs continuity of class judicial coverage. c. Many plaintiffs did not become aware of the basis of the suit and evidence of misconduct until the Adair class action was approved in 2003, which also discussed the evidence of CHC deceit and misconduct reported in the Stafford Report. 202. The Adair Court’s delay in certifying a class, the inherent secret nature of the promotion, CADRAG and SER processes, and the Navy’s deception and concealment of its violation of regulatory, statutory and constitutional violations equitably tolls any statute of limitations for claims covered by said concealment until plaintiffs’ discovery of the Navy’s wrong and/or acts as
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an equitable estoppel against the Navy from arguing that a statute of limitation applies. Likewise, the Adair Court’s failure to add plaintiffs and define the class also equitably tolls the statute. 203. This claim is common to all plaintiffs and the class.
COUNT 14 VIOLATION OF THE RELIGIOUS FREEDOM RESTORATION ACT 204. The allegations in paragraphs 1 through 203 above are incorporated herein by reference as though pleaded in full. 205. The Navy’s above challenged actions illegally burden the religious rights of Non-liturgical chaplains and Navy personnel without a substantial government purpose or narrow tailoring, in violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000-bb, et seq. 206. This claim is common to all plaintiffs and the class.
COUNT 15 A FORMER CHAPLAIN CORPS RECRUITING POLICY REQUIRING ALL CHAPLAINS TO ASSIST IN RECRUITING CHAPLAINS VIOLATED THE FIRST
AMENDMENT 207. The allegations in paragraphs 1 through 206 above are incorporated herein by reference as though pleaded in full. 208. Beginning in the late 1990's, the Navy developed a problem recruiting chaplains. In March 2001, the Navy was about 60 chaplains below its authorized number and was still short when these suits were filed. 209. Plaintiffs assert the CHC’s recruiting shortfall is a direct result of the prejudicial practices they are challenging. Some endorsing agencies no longer recommend that clergy consider the Navy as a viable career opportunity. 210. When clergy interested in the CHC ask active duty plaintiffs about their perspectives on
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the Navy as a career, plaintiffs have truthfully described the general perception by Non-liturgical chaplains that they are often treated as second-class citizens.21 Plaintiffs’ own experiences22
support the perception that Non-liturgical chaplains are not welcome in the CHC.
211. The March 2001 Navy Chaplain Leadership Conference in Dallas, Texas, discussed the
Navy’s chaplain recruiting shortfall. Echoing plaintiffs’ claims, senior Catholic CH (CAPT) Gomulka addressed23 why the CHC had that problem, pointing out that:
The Chaplain Corps has lied to clergy about opportunities for ministry in the sea services. When new chaplains discover how they are restricted in their ministry by senior chaplains who are jealous of their talents, they become angry and return to civilian life informing their clergy friends about the “truth” of what they can expect if they become Navy chaplains. The recent chaplain recruiting video is a perfect example of this problem. While the video portrayed chaplains happily engaged in ministry at a particular duty station, the truth of the matter was that a number of chaplains had left the Navy after having served at that particular duty station, frustrated at the way they were limited by command chaplains to exercise a fulfilling and life-transforming ministry. CNRC [Chief of Navy Recruiting Command] brought in chaplains from other commands to depict them happily engaged in ministry while the “real chaplains” at the duty station whose morale was quite low were nowhere to be seen.
Gomulka email, Exhibit 22 (Extract), ¶ 2.i.
212. In March 2001, then Chief RADM Black, and his Deputy RADM Iasiello, in separate but
similar messages (the “Directives”) directed all chaplains to personally and actively support
chaplain recruiting efforts.
a. The Directives established a new and mandatory Navy “chaplain to clergy”
recruiting policy and program (hereafter the “Recruiting Policy”).
21 See ¶ 7 of Ellis Report (“Non-liturgicals are often reminded ... that they are not as highly valued as others.”), Ex. 8. 22 See, e.g., ¶ 3. 23 Chaplain Gomulka emailed his trip report and memorandum to other chaplains, one of whom provided the attached copy.
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b. The Recruiting Policy required chaplains to furnish names of prospective seminary graduates and other clergy to the CHC for recruiting purposes, id., and speaking positively of the Corps. c. A chaplain’s support/non-support for the Recruiting Policy was to be noted in fitness reports and chaplain support for recruiting was to be a criteria for promotion board consideration. 213. The Directives were designed to punish plaintiffs for warning civilian clergy of the CHC’s systematic hostility and culture of prejudice plaintiffs challenge in this case, reducing some plaintiffs’ promotion opportunities while increasing the promotion opportunity of those complying with the Directives. a. Because failure to support the new Recruiting Policy promised the severe sanction of reduced opportunity for promotion, the Directives compelled or attempted to compel plaintiffs to “speak” what they would not otherwise say. b. The Directives sought to maintain the current irrational and disproportionate chaplain imbalance which plaintiffs allege constitutes an endorsement of religion forbidden by the Establishment Clause. 214. The Directives and Recruiting Policy had two objectives that implicate First Amendment values. The first objective was to obtain from active duty chaplains the names of likely candidates for the CHC’s recruiters. The second objective was to stifle criticism of the CHC, an issue of public concern, by compelling comments favorable to the CHC when potential candidates asked plaintiffs about the CHC. 215. The Directives could only be supported by compelled speech plaintiffs would otherwise not make.
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216. Compliance with the Directives’ second objective, making only positive comments, in effect, censored plaintiffs’ speech. 217. The Directives violated the First Amendment, irreparably injuring active duty plaintiffs following the publication of the policy by:
a. either censoring or compelling active duty or Reserve plaintiffs’ and other chaplains’ speech on issues of public concern, including alerting potential chaplains to the issues raised in this case; b. retaliating or allowing retaliation against plaintiffs for not complying with the Navy’s illegal directives.
COUNT 16 10 U.S.C. § 613(a) IS UNCONSTITUTIONAL AS APPLIED TO PLAINTIFFS’
CONSTITUTIONAL AND RFRA CLAIMS 218. The allegations of paragraphs 1 through 217 above her incorporated herein as though pleaded in full. 219. Plaintiffs have evidence from the defendants and DOD’s investigations into promotion boards that denomination and/or religious ideology has become a criteria for selection. 220. Plaintiffs have testimony and information indicating denominational from board members a Protestant was removed from a CAPT Chaplain promotion list to make room for a Catholic after the Catholic board member complained no Catholic had been selected. If selection board members are released from their vows of secrecy, plaintiffs will be able to establish (a) denominational considerations have been the determining factor in chaplain promotion decisions, contrary to the Establishment and Due Process Clauses and RFRA, and (b) other board misconduct by board presidents and members.
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221. This Court previously held that the restriction in former 10 U.S.C. 618(f), which In re England found barred discovery, was not unconstitutional or contrary to RFRA. 222. In October 2006, Congress amended Title 10, replacing § 618(f) with a new § 613(a) which forbids disclosure of selection board proceedings in litigation. 223. Because a statutory change has eliminated § 618(f), in order to preserve their rights of appeal on the ability to conduct discovery and seek judicial review of statutory selection board proceedings and actions therein, plaintiffs challenge the constitutionality of § 613(a)’s restrictions on discovery as applied to plaintiffs’ constitutional and RFRA claims.
a. Nothing in the legislation indicates Congress intended to bar constitutional claims. b. Barring plaintiffs’ claims allows the defendants to violate the Constitution at will during the board process with no accountability and effectively denies plaintiffs their First Amendment right to petition for redress for violations of their constitutional rights, other First Amendment rights, and their ability to bring RFRA claims. c. Denying plaintiffs’ the ability to challenge the legality of actions within the board proceedings violates the separation of powers by prohibiting the judiciary from fulfilling its constitutional mandate to declare the law and the constitutionality of defendants’ and Congress’s actions. 224. This claim is common to all plaintiffs and the class.
COUNT 17 [DISMISSED] FUNDING OF THE CHC’S ILLEGAL POLICIES, PRACTICES AND ACTIONS EXCEEDS CONGRESS’ AUTHORITY UNDER ARTICLE I, SECTION 8 OF THE
CONSTITUTION’S TAXING AND SPENDING CLAUSE 225. The allegations in paragraphs 1 through 224 are incorporated herein by reference as though pleaded in full.
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226. Funding the Navy CHC and its associated programs and activities involves a substantial expenditure of federal tax funds. 227. The Establishment Clause of the Constitution’s First Amendment specifically limits the taxing and spending power conferred by Article 1 Section 8. 228. 10 U.S.C. §§ 5142 and 5150 establish the Navy Chaplain Corps. 229. 10 U.S.C. §115(a)(1) requires Congress establish annually the Navy’s officer active duty strength, including chaplains. Congress funds specific numbers and ranks of chaplains. 230. 10 U.S.C. § 115((b)(1)(A) requires Congress approve annually the Navy’s number of illegally Retired Reservists recalled to active duty (the 4109s) “under section 12301(d) ... for the purpose of providing operational support”, and fund specific numbers of officers by grade. 231. The Navy’s denominational preference for Catholics communicates twin forbidden messages, favoritism to Liturgicals and inferiority and second class citizenship to plaintiffs and the class, some of whom have worked side by side with the 4109s and other illegally accessed and illegally recalled chaplains. 232. The Navy’s twin unconstitutional messages are specifically directed to chaplains and communicated within the CHC through and by messages, meetings and publications bringing plaintiffs and the class into unavoidable contact with not only the message(s) but the personification of the Navy’s forbidden message in the form of illegally hired and retained or illegally recalled Liturgical chaplains as well as the results of the Navy’s illegal selection board procedures and biased personnel policies and practices. 233. Plaintiffs’ “challenge here is to that portion of the overall congressional appropriation for the [Navy] that is used for the operation and maintenance of the Chaplaincy Program.” See Katcoff v. Marsh, 582 F.Supp. 463, 470 (S.D.N.Y. 1983), aff’d, 755 F.2d 223 (2d Cir. 1985).
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234. Plaintiffs specifically challenge on an as applied basis the expenditure of funds in authorizations Congress specifically knows will fund the actions of chaplains and chaplain related actions and policies, including those challenged here. This is not an incidental expenditure of tax funds in the administration of an essentially regulatory statute. 235. Congress recently changed the statutory provisions addressing chaplains showing, despite the wide latitude the Navy is given in the expenditure of tax dollars, it is Congress that consistently decides whether the Chaplaincy Program merits funding. 236. Congress’ use of tax funds, including those collected from the Non-liturgical chaplains, Navy personnel and their faith groups, to fund the Navy’s unconstitutional and prejudicial policies and actions, and its establishment or endorsement of preferred religious traditions in the CHC violates the Establishment Clause’s specific prohibition on such funding or support. Neither the taxes paid nor the funds expended are insubstantial.
COUNT 18 ENDORSING AGENCY SEPARATE CLAIMS 237. The allegations in paragraphs 1 through 236 are incorporated herein by reference as though pleaded herein. 238. CFGC and the AGC bring their separate claims against the Navy because the policies, practices and procedures challenged in this Consolidate Complaint have discriminated against (a) CFGC and AGC chaplain applicants in accessions and (b) against their chaplains in promotion and career opportunities because of CFGC’s and AGC’s faith group beliefs, traditions and worship practices. 239. This discrimination has frustrated, impaired and harmed CFGC’s and AGC’s organizational objectives, and caused them unnecessary expenses to pursue and/or defend both
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their organizational objectives and defend their chaplains from the Navy’s prejudice and prejudicial actions. 240. The Navy failed to apply its equal opportunity guidelines to CFGC minority and female chaplains. [Dismissed]. 232. The Navy, for no reason except denominational prejudice, vetoed a proposed DOD faith group identification system in the early 1990s that would have allowed charismatic and Pentecostal sailors and marines to identify themselves as associated with non-denominational churches and thereby allow their numbers to be counted in determining the faith group composition of the Navy. 241. The low accession and promotion rates for CFGC and AGC and the other evidence showing the CHC’s open hostility to their faith groups established the CHC has unconstitutionally discriminated against them.
X. PRAYER FOR RELIEF WHEREFORE, plaintiffs pray for a declaration, an injunction, judgment and other relief against the defendants as described below. A. Declaratory Relief. The allegations in ¶¶ 1 through 222 above show there is a bona fide dispute between the Plaintiffs and the Navy concerning whether the above challenged Navy policies violate the Establishment, Free Exercise, Free Speech and the Fifth Amendment’s Due Process (equal protection) Clauses, the Civil Rights Act, RFRA, and the DOD and Navy’s regulations. Pursuant to 28 U.S.C. §§ 2201 and 2202, plaintiffs request this Court render a Declaratory Judgment as well as injunctive relief. B. Injunctive Relief. The allegations in paragraphs 1 through 222 above, incorporated herein by reference as though pleaded in full, show the plaintiffs have suffered, are
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suffering and will continue to suffer immediate, severe, and irreparable injury by virtue of the Navy’s acts, policies and practices set forth herein unless restrained by this Court.
Plaintiffs have no adequate remedy at law, and seek injunctive relief on behalf of themselves and the class against the Navy, enjoining the defendants, their agents and employees from using the policies, procedures and actions challenged herein and found to violate the law.
C. Specific Declaratory and Injunctive Relief. To facilitate understanding of the relief plaintiffs seek, the declaratory and injunctive relief sought for each count is listed below. Plaintiffs seek: 1. Count 1. A declaration the Navy’s Faith Group Category System violates the First and Fifth Amendments because it is arbitrary, discriminatory, and conceals and facilitates Navy denominational prejudices and practices.
An injunction against the Navy’s grouping together for CHC personnel management and/or assignment purposes Non-liturgical faith groups with dissimilar or contrary theologies or worship practices. 2. Count 2. A declaration the Navy has established and maintained an unconstitutional religious hierarchy and preference system through its unconstitutional denominational and/or faith group cluster goals and/or quotas goals.
Note: It is inevitable that goals successfully focused at making the CHC reflect American society, from which the Navy draws its personnel, will ultimately result in more personnel of some faith groups than others, merely as a result of the nation’s religious and clergy demographics and the personal free choice of religion by military personnel. Plaintiffs’ challenge here is to hierarchies that do not reflect those demographics and rely on arbitrary decision making concerning chaplain faith group goals and allocations that produce religious bias. Plaintiffs desire
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a constitutionally based level playing field with the CHC structured to reflect its purpose, meeting DON’s free exercise needs in the context of its operational realities. Consequently, plaintiffs seek an injunction requiring the Navy to establish effective guarantees that its CHC personnel and personnel management decisions are based on and reflect identified needs and that access to the highest levels of the CHC are not limited by arbitrary limits and established hierarchies. 3. Count 3. A declaration the Navy has established and maintained an unconstitutional chaplain accession system unrelated to meeting DON’s Free Exercise needs.
An injunction enjoining the Navy to develop and maintain (a) systematic programs and procedures using objective criteria to evaluate DON’s free exercise needs in the context of its operational requirements; (b) objective standards to determine DON’s denominational accession requirements and mix that best meets the CHC’s mission to provide for the DON’s free exercise needs; this could be the national religious demographics, DON’s actual religious demographics or a combination of both; (c) realistic denominational accession goals based on established and objective criteria that also reflect the appropriate pool of available clergy applicants, see, e.g., Hazelwood School Dist. v. U.S., 433 U.S. 299, 303 (1977) (“qualified public school teacher population in the relevant labor market”) while providing flexibility to adjust to market realities;24 and (c) ensure that established faith communities in overseas locations, e.g. Naples, Italy and Rota, Spain, are provided chaplains that meet the needs of those faith communities. 4. Count 4. A declaration that: (a) the Navy’s past and present chaplain promotion, CADRAG, and SER selection board systems violate the First and Fifth Amendments and RFRA and were illegally composed. This includes
24 Under the old demographic based system, if there were foreseeable vacancies or unmet goals in some denominations but available applicants in others, the available clergy were accessed, conserving resources and billet spaces, and adjustments made in the following years if practical.
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the procedures allowing one board member to “zero out” a chaplain candidate’s promotion and/or career, small boards, secret votes, briefing of records rather than requiring each member’s review of each candidate’s record, failure to provide accountability for board member votes, and discussions about candidates that are unrecorded and allow non-record information or evaluation to enter into consideration; (b) the Navy’s practice of using the Chief of Chaplains as the board president violates the First and Fifth Amendments; (c) all boards using those procedures, including chaplain promotion, CADRAG and SER boards, since FY 77 to the present, the time period claimed by the class, are unconstitutional and void ab initio; (d) the practice of using chaplains as board members violates the Establishment and Due Process Clauses since the Navy has no effective guarantees the power that adheres with board membership can be used only for secular, neutral and non-ideological purposes; (e) those plaintiffs and members of the class separated by the challenged boards are entitled to be reinstated to active duty until such time as they have been reviewed by legally constituted boards; and (f) the Navy’s CARE board system and its procedures are unconstitutional because it has no objective criteria and no effective means to preclude improper denominational considerations from influencing or entering into the accession evaluation and decision process.
NOTE: Reform of Navy selection boards’ processes and procedures is easily achieved if the Navy adopts Army and Air Force selection board procedures.
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An injunction requiring the Navy to: (a) cease placing chaplain(s) on selection boards unless there are effective guarantees the delegated power will be used for secular, neutral and non-ideological purposes which prevent the opportunity to advance denomination or exercise personal bias; (b) cease allowing the Chief or Deputy Chief of Chaplains to serve as president of CHC selection boards, participating in the selection or approval of any chaplain selection board member(s), or serving on a chaplain selection board; (c) establish procedures (as the Army and Air Force require) that
(i) require each board member to review and score each chaplain candidate’s record, (ii) establish accountability for each board member’s vote, and (iii) prohibit board members briefing chaplain candidates records; (d) provide a sufficient number of board members similar to Army and Air Force boards to prevent manipulation of board results; (e) cease discussing candidates’ records except in unusual situations defined by regulations, e.g., two equally qualified candidate records vying for one remaining promotion and President believes members’ views would help reach consensus, and in such cases, to make a summary record of the discussion; (f) require the removal of all chaplain denominational or faith group identifiers from candidates’ records being reviewed by boards, e.g. reference to “rabbi, priest, imam, from the records under review and removal of all seminary records (which can often identify a chaplain’s denomination); and (g) develop objective criteria and procedures for CARE boards to evaluate clergy or religious leader applicants for chaplain appointments with effective means to preclude improper
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denominational considerations from influencing or entering into the accession evaluation process. 5. Count 5. A declaration (a) the Navy’s Reserve Chaplain recall system as applied has violated its own regulations, is discriminatory and unconstitutional; (b) those chaplains illegally recalled must be returned to Reserve duty; (c) their illegal recall has improperly restricted or denied promotions of eligible Navy Regular chaplains or properly recalled Reservists; and (d) the illegal recall system has improperly and prejudicially influenced the SER process and resulted in chaplains being improperly, involuntarily retired.
An injunction enjoining the Navy from violating its own regulations and establishing a monitoring program to ensure chaplain recalls, if any, are denominationally neutral and/or based on an objective need and comply with the CHC’s regulations.25 6. Count 6 [Dismissed]. A declaration the Navy’s practice and/or policy allowing chaplains to rate other chaplains, except in exceptional circumstances, violates the First and Fifth Amendments.
An injunction requiring the Navy to establish effective policies that provide objective criteria for chaplain evaluations, and ensure Commanders rate chaplains based on objective criteria and mensurable results related to effective ministry with safeguards against denominational bias. 7. Count 7. A declaration the CHC has created an unconstitutional culture of religious prejudice or bias characterized by:
25 Plaintiffs recognize there may be a need to recall specific denominational reservists, e.g., Rabbi, to meet free exercise needs in an operational context.
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(a) persistent and overt hostility to non-liturgical chaplains and Navy members and favoritism for Liturgical denominations; (b) subjective evaluation systems not descriptive of chaplain duties and ministry; (c) two systems for discipline and management, one for favored denominations and another for non-favored denominations; and (d) the encouragement, maintenance and advancement of chaplains who have made a career of killing Non-liturgical chaplains’ careers.
An injunction requiring the Navy to establish (a) a monitor, reporting and investigation system to
(i) review career assignment and (ii) receive and address claims of denominational prejudice in career alignments, administrative actions and discipline; (b) develop a fitness report for chaplains that provides objective performance criteria, identifies appropriate competencies related to ministry, provides commanders appropriate information on evaluating other chaplain specific duties, and rewards effective ministry, e.g., growing base chapel communities.; and (c) address and remove the penalties to specific plaintiffs’ careers caused by command chaplains’ or commanders’ hostility because plaintiffs’ preached and prayed according to their faith tradition, grew chapels and nurtured their congregations. 8. Count 8. A declaration the Navy’s hostility to non-liturgical denominations and their traditions as reflected in all of the above has burdened plaintiffs in violation of the First and Fifth Amendments and RFRA. See Count 7 for the appropriate injunctive relief.
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9. Count 9. A declaration the Navy discriminates against non-liturgical chaplains’ religious free speech.
An injunction requiring the Navy to establish polices and procedures to protect chaplains’ religions speech, and address and remedy the damage to specific plaintiffs’ careers because of senior chaplains’ or commanders’ hostility to Non-liturgical religious speech. 10. Count 10. A declaration (a) the Navy’s policy of promoting only a “General Protestant” type of service and restricting other forms of Non-liturgical religious services has violated the First and Fifth Amendments and RFRA; and (b) the Navy has retaliated against and penalized plaintiffs and other Non-liturgical chaplains for growing chapel congregations and communities.
An injunction enjoining the Navy to: (a) cease emphasis on a “one size fits all” approach to religious worship; (b) establish polices and procedures to ensure established faith communities are supported with chaplains and resources, and the members of those congregations are encouraged to participate and have input into decisions affecting the congregation or community; (c) establish objective criteria to measure the health of such communities and ensure they receive appropriate command and logistical support; and (d) address and remove the penalties to specific plaintiffs’ careers caused by command chaplains’ hostility or commanders’ hostility because plaintiffs’ preached and prayed according to their faith tradition, grew chapels and nurtured their congregations. 11. Count 11. A declaration the Navy constructively discharged certain plaintiffs.
An injunction requiring the Navy to remedy the harm to plaintiffs’ careers caused by their illegal discharges. 12. Count 12. A declaration the Navy’s actions against certain plaintiffs was illegal retaliation.
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An injunction requiring the Navy to address and remove the penalties to specific plaintiffs’ careers caused by retaliation. 13. Count 13. A declaration the Navy fraudulently concealed and/or illegally covered up the evidence of plaintiffs’ cause of action. 14. Count 14. A declaration the Navy’s actions challenged in this Combined Complaint have violated RFRA.
Injunctions in the other Counts should address the burden resulting from the Navy’s challenged policies. E.g., Counts 4, 5, 7. 15. Count 15. A declaration the former CHC recruiting policy requiring all chaplains to assist in recruiting chaplains violated the First and Fifth Amendments and RFRA.
An injunction (a) prohibiting the Navy from requiring all chaplains to recruit chaplains, rewarding those who comply with the policy and punishing those who do not; (b) ordering the Navy to remove all references to support/non-support of the recruiting policy from all chaplains’ records except those chaplains assigned to recruiting; and (c) requiring the Navy to address and remove the penalties to specific plaintiffs’ careers caused by failure to support the challenged recruiting policy. 16. Count 16. A declaration 10 U.S.C. § 613(a) is unconstitutional as applied to plaintiffs’ constitutional and RFRA claims.
An injunction enjoining the Secretary of Navy from refusing to release board members from their oath of secrecy when allegations of board misconduct arise. 17. Count 17 [Dismissed]. A declaration the funding of the current organization of the Navy CHC exceeds congress’s authority under Article 1, Section 8 of the Constitution’s Taxing and
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Spending Clause. 18. Count 18. A declaration the Navy has: (a) discriminated against CFGC and AGC chaplain applicants and their chaplains in promotion and career opportunities, frustrating CFGC’s and AGC’s organizational objectives, causing them unnecessary expenses to defend their missions and chaplains; (b) failed to apply its equal opportunity guidelines to CFGC Minority and female chaplains [this claim was dismissed]; (c.) The Navy vetoed a proposed DOD faith group identification system in the early 1990s that would have allowed charismatic and Pentecostal sailors and marines to identify them selves as associated with non-denominational churches, many of which are represented by CFGC chaplains, and thereby allow their numbers to be counted in determining the faith group composition of the Navy.
An injunction requiring the Navy to develop a system that will allow DON personnel from charismatic and like faith Non-denominational groups to identify themselves as such at enlistment or inprocessing.
Addressing the issues in the other Counts will address these organizations’ injunctive requirements. C. An Order
Plaintiffs request that the Court issue an Order requiring the Navy to: 1. Implement all of the injunctive relief plaintiffs request in their Counts 1-19 above. 2 Develop, in coordination with plaintiffs, and maintain a system of checks and balances to insure that the actions implementing the injunctive relief above and additional relief here have (a) effectively eliminated religion, faith group or denomination from
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effecting promotions or career processes unless linked to remedying past discrimination; (2) eliminated all vestiges of the CHC’s past religious bias and discrimination in selecting chaplains for promotion and career assignments; and (3) complaints of religious discrimination are promptly investigated and addressed. . For chaplain promotion and SER boards, this includes: 3. Take all necessary and affirmative actions to immediately:
a. Identify or project DON’s operational religious free exercise needs through actual measurement or estimates based on national religious demographics, including (i) considering DON operational requirements, (ii) the resources required to meet those needs, (iii) the resources available through DON, (iv) the resources available in operational/deployment areas and other resources such as English speaking religious leaders/clergy in ports of call, and (v) other factors such as appropriate retention and personnel considerations; b. Develop a plan to adjust the CHC, including its current rank structure on a one time basis after the new boards are conducted, so it reasonably reflects the Navy’s identified religious needs; 4. Energetically and effectively investigate all allegations of religious prejudice by senior chaplains in rating or supervising Non-liturgical chaplains. Where actual prejudice is found or bias demonstrated, correct the records and remove the prejudice from the affected Non-liturgical chaplain’s official career file, take other necessary actions to make plaintiffs whole, and take corrective action to preclude further incidents of prejudice. 5. Develop new policies, guidelines and regulations that: a. Reflect and address the wide differences in theological perspectives and
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worship practices among faith groups characterized as Non-liturgical, e.g., pentecostal/charismatic faith groups versus those which reject pentecostal beliefs and practices; b. Encourage denominational specific services, and provide approval and support mechanisms for alternative Non-liturgical services that meet the varying needs of the Navy’s Non-liturgical religious community at Navy installations, bases, ships and facilities, especially at overseas locations; c. Ensure that such services receive priority or become the main Christian service when Non-liturgicals constitute a majority at the installation, base or facility; d. Take affirmative steps to eliminate CHC bias against Non-liturgical worship, beliefs and chaplains; e. Where a recognized faith community has developed, e.g., charismatic and evangelical (Naples and Rota), ensure chaplains of that faith perspective are assigned in a manner providing continuity and effective support; f. Develop secular, neutral criteria that identifies, describes and measures the performance standards and factors for chaplain evaluations,, including specific guidance on measuring supervisory chaplains’ skills and effectiveness. 6. To continue to officially record the religious preference of all Navy personnel. 7. Issue the necessary orders voiding all adverse personnel actions, including but not limited to separations and early retirements, flowing from the 1977-1986 2RC Policy, the follow on 1RC Policy (1986-2002), the Thirds Policy and its progeny and the unconstitutional promotion and SER boards described herein, and take other action to
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remedy the results of the Navy’s illegal activities described herein and make plaintiffs and the class whole, i.e., as if there had been no prejudice. 8. Instruct promotion boards that in considering chaplains with prior service as Navy, Marine or other Armed Service officers, the candidate’s prior-service fitness reports will be considered positively in the promotion process absent compelling contrary reasons. 9. Rescind all letter, directives and/or training lessons suggesting or implying how chaplains are to pray in public and publish regulations and provide training, especially for commanders and senior staff officers, affirming a chaplain’s right as a denominational representative to freely speak and pray from his or her faith perspective. 10. Develop a screening, evaluation and treatment program for Post Traumatic Stress Disorder (PTSD) for plaintiffs, the class, and where appropriate, their dependents. This is necessary due to a large number of Plaintiffs who have PTSD as a result of working under command chaplains who have destroyed chaplains’ careers, or other causes of PTSD or similar injury, such as betrayal by the CHC and the Navy. 11. Provide special compensation for these plaintif s for the expense, stress and hostility they have endured to bring this action and vindicate their rights and correct serious misconduct, breeches of the public trust, misuse of taxpayers funds, abuse of power and violation of duty to uphold the Constitution. D. Attorneys’ Fees and Other Relief 1. Plaintiffs request this Court award plaintiffs the reasonable costs and expenses of this action, including expert and attorneys’ fees in accordance with the Equal Access to Justice Act, 28 U.S.C. § 2412; the Civil Rights Act, 42 U.S.C. § 1988; the Religious Freedom Restoration Act, 42 U.S.C. § 2000-bb; class action case law and/or any other
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applicable statue or rule of law or equity.

2. That this Court:

a. Retain jurisdiction of this matter for the purposes of enforcing the Court’s

orders;

b. Require the Navy to provide periodic reports to the Court and plaintiffs as

to its progress in complying with B and C above;

c. The Court provide other such relief as may become apparent in the course

of litigation.

Respectfully submitted,

Dated: October 1, 2012

/S/ Arthur A. Schulcz, Sr. ARTHUR A. SCHULCZ, SR. Counsel for the Plaintiffs Bar. No. 453402 (D.C.) 2521 Drexel Street Vienna, VA 22180 703-645-4010

Of Counsel: Douglas McKusick, Esq. THE RUTHERFORD INSTITUTE P.O. Box 7482 Charlottesville, VA 22906-7482

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EXHIBIT LIST

Exhibit

Identification or Subject

1 Affidavit of Rev. Dr. Jim Ammerman, CFGC Director

2 Chief of Chaplains List

3 Wilkins v. Lehman, 85-cv3031 slip op. (S.D.Cal. 1986)

4 7/8/98 Report by the Defense Manpower Data Center (hereafter “DMDC”)

5 Department of Navy religious demographics based on the DMDC data for 1998-2001 and 2006 (when Gibson was filed -- includes DON officer preferences)

6 Navy Chaplain Corps’ formula for computing pre-July 1986 accession goals

7 Affidavit of CAPT Larry Ellis, CHC, USN

8 FY88-2001 Accession goals

9 October 1999 Chaplain Corps Briefing on Department of Navy Religious Preferences

10 Declaration of CAPT James Poe, CHC, USN (Ret.) (“Poe”), Regional Chaplain, Naval Region Europe ¶¶ 10-12
11 Dr.Harald R. Leuba, PhD, Expert report, Allonge Declaration
12 1988-2005 Non-liturgical Accessions, Table QE-6 from, Withdrawal &Correction, Dr. Harald R. Leuba, PhD (Expert Report, created in Larson v. U.S. Navy)
13 Orders recalling Chaplain (CDR) John Lyle as a flight surgeon
14 CAPT Larry Ellis’s 1/25/95 Memorandum to Chief of Chaplains
15. CHC FY77-02 chaplain board denominational members
16 Over- and Under-Representation of LCDR board members by FGC compared with the LT community under consideration for promotion to LCDR
17 Over- and Under-Representation of CDR board members by FGC compared with the LCDR community under consideration for promotion to CDR

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Case 1:07-mc-00269-GK Document 134 Filed 10/03/12 Page 128 of 206 18 CAPT J. N. Stafford, special assistant for Navy minority affairs, report to the Chief of
Naval Personnel of investigation of FY 97-98 chaplain CDR promotion boards 19 Extracts ( pp. 3 & 4) of March 1999 DOD IG investigation into FY97 and 98 CDR
chaplain promotion boards in selecting 20 Chaplain/adherent ratios by FGC 21 Commander, Guantanamo Bay, Cuba, Memorandum Command Chaplain rejecting
attempt to suppress the 0730 service, a Non-liturgical charismatic service 22 Email by CAPT Eugene Gomulka re: Recruiting Problems
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CERTIFICATE OF SERVICE I hereby certify that on October 1, 2012true and correct copy of the In re Navy Chaplaincy Plaintiffs’ Consolidated Complaint was filed with the Court’s Electronic Case Management Filing System which serves a copy of said filing on the following; Christopher Hall Matthew Lawrence Attorney, Civil Division U.S. Department of Justice 20 Massachusetts Ave., NW Room 7322 Washington, D.C. 20001
S/ Arthur A. Schulcz, Sr. ARTHUR A. SCHULCZ, Sr. D.C. Bar No. 453402 Counsel for In re Navy Chaplaincy Plaintiffs 2521 Drexel Street Vienna, VA 22180 703-645-4010 FAX: 703-645-4011
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ADDENDUM A Individual Chaplains Individual Chaplains Plaintiff’s Names Alphabetically, Addresses and
Claims Each of the 65 individual chaplain plaintiffs is identified below with a number for accountability and ease of reference; each plaintiff’s original case is indicted by ( ). Each has suffered injury as a result of the Navy’s policies challenged here which have deprived them of fair and equal opportunity for promotion and a career in the Navy, as well as the corollary injuries flowing from (a) the depravation of their First and Fifth Amendment and statutory rights,(b) violations of statues and regulations; and (c) the identified harms identified herein: Each plaintiff is listed alphabetically in Attachment B by specific case listing. 1. ROBERT H. ADAIR (Adair) resides at 304 Cowan Street, Columbia, TN 38401. He enlisted in the Navy in January, 1967. After completing his enlistment in 1970, he went to college and seminary, earning a Master of Divinity Degree in 1977. Endorsed by the Southern Baptist Convention, a Non-liturgical denomination, he entered active duty as a Navy chaplain in 1979. Despite his outstanding service, he was selected for early retirement in FY 95 by a Selective Early Retirement Board (SERB) that selected only Non-liturgical chaplains while allowing Liturgical chaplains with inferior records to continue on active duty. He was involuntarily retired in 1996. But for the SERB decision, believed to rest on illegal religious discrimination and animosity toward his faith group, Chaplain (“CH”) Adair would have continued on active duty and retired at a higher pay rate. 2. RICHARD ARNOLD (Gibson) lives at 13055 Fringetree Drive, #E, Jacksonville, FL 32246. CH Arnold was commissioned in the Theological Student Program as an Ensign in 1982 and entered active duty as a Navy chaplain in August 1987. He was endorsed by the Southern Baptist Convention and entered the Navy with 3 years prior enlisted service in the Air Force where he
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rose to the rank of Sargent. After various assignments, he was selected to go to postgraduate school in 1993 and completed his work in 1994. During this time he was promoted to LCDR.
He then reported to Mayport, FL where he worked under the supervision of command chaplain Charles Eis, a Roman Catholic. CH Eis’ strange behavior and conduct led CH Arnold and another chaplain at Mayport, LCDR Aufderheide, to intercede with the commanding officer to have CH Eis psychologically evaluated for his fitness for service. As a result of his involvement in an attempt to help CH Eis and protect his command and the Navy, CH Arnold was banished from the chapel by CH Eis and was accused by Catholics as having “destroyed Charlie’s career.” CH Eis was later selected for Selective Early Retirement.
An acquaintance notified CH Arnold that CH (CAPT) Oddo, a Roman Catholic, made a comment at a Senior CHC leadership meeting that “There is no place in the navy for Rich Arnold.” This statement is without foundation and was a message from the Catholic CH Oddo to others, particularly Catholics, who might serve on promotion boards that CH Arnold was “damaged goods.” This statement had no other context except retaliation, given CH Arnold’s outstanding record and service. However, in assignments following Mayport, the CHC detailed CH Arnold to LT (O-3) billets although he was a LCDR. Because the promotion system operates with secret votes and small numbers, CH Arnold believes he was blackballed either in retaliation for his role in having CH Eis evaluated, or as a result of the false information and character assassination related to his role in reporting a senior chaplain’s misconduct and strange behavior. The BCNR denied his appeal of his non-selection to CDR. CH Arnold is now retired. 3. RAY A. BAILEY (Gibson) lives at 345 Wilson Dr., Havelock, North Carolina, 28532. He is endorsed by the Evangelical Free Church of America, a non-liturgical faith group. He entered active duty in January 1994. The Navy’s illegal and egregious prejudice against Non-liturgical
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faith groups and their chaplains has illegally prejudiced CH Bailey’s career. While stationed at the Naval Support Activity, Naples, Italy, the liberal Episcopalian command chaplain, CDR Gary Parker, made the general comment to CH Bailey and the other Non-liturgical chaplains under his supervision, “You talk about Jesus too much in your sermons.” This was a clear warning to CH Bailey and other Non-liturgical chaplains that CH Parker considered the provisions of 10 U.S. C. § 6031, which allows chaplains to conduct worship services according to the customs of their church, to be void.
On the USS EMORY S. LAND (May-October 1999), liturgical Command CH Lanz required CH Bailey to preach from the liturgical calendar and conduct liturgical services although CH Bailey is Non-liturgical. CH Lanz said on numerous occasions, “the Navy should go to one style of worship, mine,” Presbyterian and liturgical.
Throughout his Navy career, CH Bailey has been hindered by Liturgical Protestant senior chaplains who have tried to force his and all other ministry into a narrow liturgical format or mode regardless of the religious needs or preferences of the population he served. This prejudice is further reflected in the Navy’s failure to consider him fairly for promotion. The Navy has injected bias and prejudice against Non-liturgical chaplains such as CH Bailey in the CHC promotion and career process, as evidenced in the flawed board composition and procedures. After being FOS numerous times, CH Bailey was promoted to LCDR in 2003. Reportedly, he was selected after the Navy eliminated the division between “above-zone” (previously not selected) and “in-zone”. If true, this supports CH Bailey’s belief he should have been selected when first considered, but was prejudiced by the CHC’s bias against Non-liturgicals. 4. MICHAEL BELT (Adair) was an active duty chaplain at the rank of Lieutenant when this suit was filed. He now resides at 2160 Casitas Del Rio Dr., Phoenix, AZ 05024. Enrolling in the
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Navy Chaplain Candidate Program as a United Methodist, he changed his endorsement to the Non-liturgical Church of the Nazarene before entering active duty in September 1991. While stationed on Okinawa from 1991 to 1993, his Liturgical Protestant rating chaplain gave him a poor fitness report after CH Belt failed to support his rater’s selling tickets to the rater’s prayer breakfasts. This same Liturgical Protestant chaplain later berated CH Belt for preaching that men who call themselves Christians should live as Christians and gave CH Belt a low mark on his fitness report. After CH Belt and another Non-liturgical chaplain reformatted a Protestant service with low attendance, the congregation grew from 40 to approximately 130. In recognition for this, he was told by his rating Liturgical Protestant chaplain that his style of worship was “hogwash.” The Liturgical Protestant then took over the service, changed it back to a Liturgical service, effectively killing the service and driving the congregation away.
At his duty station in San Diego, he witnessed and experienced Liturgical bias and prejudice against himself and other Non-liturgical chaplains, including being excluded from decisions and meetings that affected him and other chaplains until after decisions had been made at exclusively Liturgical chaplain meetings, and seeing Catholic and Liturgical Protestant chaplains whose work output was below their peers nonetheless being given higher fitness reports. As a result of the Navy’s denominational prejudice, CH Belt was non-selected for promotion to the grade of Lieutenant Commander (“LCDR”) by the fiscal year (“FY”) 1999 and 2000 chaplain promotion boards. CH Belt became aware of the Navy’s systematic bias in early 2000 after talking with another chaplain whose endorsing agency (the Chaplaincy of Full Gospel Churches) had filed suit against the Navy.
As a result of injuries received on active duty complicated by Navy medical malpractice, CH Belt became an invalid, walking only with great difficulty and pain. The Navy started the process
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for a medical board to evaluate the CH Belt for medical retirement. However, due the Navy’s delay and broken promises, CH Belt was separated for FOS in March 2006, despite the Navy’s failure to complete the medical evaluation board causing CH Belt and his family great distress and hardship 5. WILLIAM C. BLAIR (Adair) resides at 1 Idlewood Drive (W.E.), Jamestown, NY 14701. He is endorsed by the Non-liturgical Assemblies of God faith group. Before attending seminary, he had prior enlisted service in the U.S. Marine Corps from September 1972 to August 1976. He became a Navy chaplain in July 1983 and was recalled to active duty in September 1983. He was promoted to Lieutenant Commander and selected for post graduate school. As a Non-liturgical chaplain, he was required to be able to officiate at Liturgical Protestant services, but Liturgical Protestant chaplains were not required to know how to or to officiate at Non-liturgical services. Yet, he was not selected for Commander by the FY 97 chaplain Commander selection board, despite an outstanding record superior to many of those selected for promotion.
When CH Blair attempted to learn the cause of his non-selection, he was told by a senior CHC official that his one rating (in 16 years of service) of 3 of 3 was the only indication in his record. He appealed that rating and his non-selection to the Board of Correction of Naval Records which in effect informed him that there was nothing wrong with the board and that he had no basis for a complaint. His subsequent requests for an explanation were met with a “we can’t talk about the board - it’s a secret.”
Following his second non-selection, he was told by the Chaplain Corps to “either retire or be retired.” In the face of the Navy’s threat and prejudice, he retired on September 1, 1999. The result of the Navy’s prejudice, actions, and threats constitutes a constructive discharge.
Subsequent investigations of the FY 97 and 98 Commander’s boards found that a chaplain’s
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faith group became a consideration and criterium for promotion, see, e.g., ¶ 52, infra. Being a Non-liturgical, CH Blair did not belong to a favored faith group. Upon examination of the information in the Stafford Report, id., CH Blair could see that his record was superior to many who were promoted; some of those promoted had in their records the very things which CHC senior officials had consistently said would keep a chaplain from being promoted.
Other examples of the prejudice he received include the Navy’s lack of support and hostility to a “full gospel” worship service he started around 1992 in Naples, Italy, that became the largest onbase non-Catholic service. While the poorly attended liturgical General Protestant service received full support and funding, his well attended service had to improvise just to survive, including using a borrowed personal stereo amplifier to run the service’s sound system. 6. RICK P. BRADLEY (Gibson) currently resides at 2580 Grummer Lane, Conway, Arkansas. He was endorsed by the Southern Baptist Convention, commissioned and entered active duty as a chaplain in December 1997. Following Chaplain School and training at Camp Lejeune, he was sent to Guam for his first assignment to the sub tender USS FRANK CABLE, AS40. He left Guam in December 1999 and transferred to Paris Island for the period January 2000 to September 2003, when he was reassigned to Marine Air Group at Beaufort, SC. As a result of a physical in his pre-deployment procedures, he was discovered to have an unknown blood disease. This led to a two-year period of multiple visits to Walter Reed Army Medical Center, Bethesda Naval Medical Center, and Johns Hopkins University, which finally determined the cause of his medical manifestations was a reaction to anthrax. This made him ineligible for deployment and resulted in a medical board which subsequently discharged him. However, during the time when he was being evaluated, he went before a promotion board in March of 2002 for FY03, for which he FOS to LCDR despite outstanding fitness reports.
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Prior to his revisiting Walter Reed, he worked with the Deputy Command Chaplain to ensure his file that appeared before the board was complete. However, when he reviewed his Officer Personal Data Sheet after the board, he found it had been substantially altered with blanks and other incorrect information, so much so that it did not accurately reflect in any meaningful way his history, education or other information relied upon by the board. There is no explanation as to how this information was corrupted. In attempting to resolve this, he was told by his command chaplain he needed to talk to the Chief of Chaplains office. That office told him he needed to work with his command chaplain. Before this could be resolved, CH Bradley was medically discharged. During his time on active duty, he was reprimanded by his senior chaplain for praying in Jesus’ name at a graduation while assigned to Paris Island, although it is a practice consistent with his faith group’s beliefs and practices.
CH Bradley’s FOS to LCDR is believed to be the result of prejudice against him for his consistent, effective performance and insistence on following the dictates of his conscience, which included praying in the name of Jesus, as authorized by his faith group. 7. GEORGE PHILIP BYRUM (Gibson) lives at 3421 Anderson Dr., Winston-Salem, NC 27127. He began his military career on March 24, 1972. Completing Navy flight school, he served as a Naval aviator until he entered the Theological Student Program in 1979. Graduating from Southwestern Baptist Theological Seminary, he became a Navy chaplain in 1981, endorsed by the Plymouth Brethren, a Non-liturgical faith group. During his career as a chaplain, he was selected for post-graduate schooling and earned a Masters Degree in pastoral counseling. CH Byrum’s outstanding performance is indicated by the fact that he never had less then an “A” on his 26 observed fitness reports, was rated in the top 1% and 25 times recommended for “early promotion.” CH Byrum had two combat tours, serving on the USS KENNEDY during the Beirut
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(Lebanon) conflict and in Desert Storm with the 4th Marine Expeditionary Brigade. He was selected for the Chaplain Advanced Course during which he completed a second Masters Degree. He was awarded the Humanitarian Service Medal for his work as the command chaplain of the Naval Air Station Guam for his leadership in relief work following Typhoon Omar in 1993. Despite his outstanding record, selection for postgraduate school and two additional graduate degrees, the Chaplain Corps FY96 SERB selected CH Byrum for involuntary retirement effective July 31, 1996, before he was considered for promotion to CAPT. CH Byrum challenged his selection for SER through the BCNR, using the same arguments presented here, that the reservation of a selection board seat for a Catholic, for both promotion and SER boards, was illegal. The BCNR rejected his petition.
Analysis of the FY96 SER candidate career histories shows while choosing CH Byrum with no FOS for SER, the board retained four of the six chaplains with numerous FOS to CAPT, including the chaplain with the most FOS (CH Palmer) who had about one year active service left. This is contrary to the Secretary’s SER criteria for retention which emphasized future potential for service. CH Byrum believes the CHC selected him for involuntary retirement on the basis of his faith group and because his outstanding record as a Non-liturgical chaplain was a threat to the Liturgical domination of the CHC. No other explanation is apparent given the records of those the CHC retained compared with CH Bryrum’s. 8. ANDREW CALHOUN (Gibson) currently resides at 3269 East Bonnie Drive, Oak Creek, Wisconsin. He began his career as a Navy chaplain commissioned as an Ensign in 1984 in the Theological Student Program and endorsed by the Church of God in Christ, a Non-liturgical denomination. He was subsequently given a superceding appointment to the CHC in 1988, came on active duty in 1990 and was assigned to the Naval Training Center, Great Lakes, Illinois. He
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was then assigned to the USS BAINBRIDGE. Because of his involvement with a community service program, his ship was recognized as having the most outstanding community service programs. In fact, the name of the Navy award given to ships for community service is now known as the USS BAINBRIDGE Award, a recognition of the contribution CH Calhoun made to both the Navy and his ship. His subsequent assignments included a tour at the Milwaukee, Wisconsin Coast Guard Station followed by postgraduate school, where he obtained a MTh degree, a reassignment to Okinawa for a one year unaccompanied tour, and then to Little Creek, Virginia. He was promoted to LCDR in 1994.
Two weeks prior to the FY2001 CDR board, he received a revised fitness report delivered to him by FedEx which substantially reduced his final fitness report for the period he was at the Milwaukee Coast Guard Station. This report was written outside the window in which corrections were authorized to be made and he received no warning or opportunity to rebut it, nor an explanation of the basis for the change. He came to believe this report was instigated by RADM Iasiello since a letter accompanying the report indicated it had the approval of RADM Iasiello, who also served as the president of the promotion board before which the report was submitted. The apparent unfairness of the later report which undermined his chances for promotion, the complicity of RADM Iasiello, who should have recused himself from consideration as president given his involvement in the approval of the revised report, and subsequent difficulty in attempting to resolve the question, convinced CH Calhoun the Navy had become hostile to him, there was no place for him in the Navy CHC and he submitted his resignation. The CHC’s animosity against him is further exemplified in its rejection of CH Calhoun’s request for release from the Navy in the early summer of 2001 to pursue civilian employment opportunities and minimize the impact of transition on his family. The Navy would not release him until February
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of 2002. The Navy’s treatment of CH Calhoun is typical of the second class treatment afforded many Non-liturgicals and reflects a determined effort to insure that gifted and qualified Nonliturgicals are removed from the service. 9. MARTHA CARSON (CFGC) was commissioned in the United States Marine Corps in 1980 and served as a Marine until 1987 when she left active duty to obtain a Masters of Divinity Degree at Duke University, Durham N.C. Beginning the process to become a Navy Chaplain under the endorsement of the United Methodist Church, she switched to CFGC’s endorsement before reporting for active duty. The Navy’s and CHC’s actions suggest Navy discrimination against her based on her identification as a CFGC endorsed chaplain. This discrimination took various forms, including: (a) unreasonable delay and changes in bringing her to active duty after she had changed her endorsement to CFGC and had quit her job based on a specific reporting date and ship assignment (USS Simon Lake) that the CHC had previously given her; (b) denying her a fair opportunity for promotion by turning her prior outstanding military service into a detriment and liability and giving her assignments that made her non-competitive for promotion; (c) causing economic and other injury by unreasonably delaying her discharge orders and interfering with her opportunity to seek commissioning in the Army Chaplains Corps. She left the Navy after her failure of selection (FOS) of promotion to the grade of Lieutenant Commander (“LCDR”), was commissioned as an Army chaplain, promoted to Major (the Army equivalent of LCDR), and retired April 2008 after completing 20 years commissioned service. She lives at 3305 N.W. Cache Rd., LAWTON, OK 73505-3875.
CH Carson’s injuries include being denied a fair opportunity to compete for promotions in the Navy, denial of promotion in the Navy, delaying her promotion to Officer pay grade 4 (“O-4")26
26 Military services often identify rank with its equivalent paygrade, e.g., O-4, MAJ or LCDR. The “O” stands for “Officer” and the number equates to the grade above entry level, here 4.
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(Major) because she had to essentially start her career over again in the Army, and denial of promotion subsequently to O-5, and the financial delay in bringing her to and releasing her from active duty as mentioned above. 10. GREG DEMARCO (Adair) resides at 835 Terrace Ave., Virginia Beach, VA 23451. He served as an enlisted Navy “hard hat” deep sea diver from 1972 to 1981 when he left the Navy for seminary. He was commissioned as a Non-liturgical chaplain in 1983 and remained in the Navy Reserve until he was recalled to active duty in 1987. He was promoted to Lieutenant Commander in 1993 and remained on active duty until 1998. His last duty assignment was in Naples, Italy, from October 1995 to June 1998. In December 1997, he was criticized by the liturgical command chaplain for ending his prayers “in Jesus name”. When he insisted on praying in accordance with his beliefs and religious tradition, as allowed under Navy regulations and federal statute, the Liturgical command chaplain rated him in a way that made him noncompetitive for promotion. This rating was based on faith group prejudice and bias and deliberately ignored CH De Marco’s service to the Naples Protestant community including the fact that the congregation had grown from 25 to over 200, making it the largest Protestant worshiping community in the Navy in Europe. His evaluation also ignored the large corresponding increases in the religious education and children’s programs due to CH De Marco’s efforts.
The systematic faith group hostility and prejudice evidenced at Naples made it clear to CH De Marco he had no chance for promotion, his Navy career was effectively finished and the Navy’s continuing covert prejudice would make his life unbearable. He chose to retire early to save further humiliation, minimize his personal and professional injury, and minimize the disruption and damage to his family. The Navy’s actions were a constructive discharge based on religious
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prejudice. But for this hostility, CH De Marco would have successfully continued his Navy career as evidenced by his outstanding record prior to Naples. 11. CH (CDR) TIMOTHY DEMY (Gibson) resides at 7 Ellen Road, Middletown, Rhode Island. He was commissioned in the CHC in 1981 and came on active duty in July 1984. He is endorsed by the Bible Churches Chaplaincy. He was promoted to LCDR in 1988 and CDR in 1993. CH Demy was the honor grad for the Chaplain Advanced Course and was assigned to the Chief of Chaplains Office in the summer of 1990 where he worked in the detailing office first as admin officer and then as the junior detailer. After a tour with the Coast Guard Headquarters, he was assigned to the Naval Chaplain School as the supervisory course officer, followed by attendance at the Naval War College from March 1998 to 99. He was the first chaplain to be designated the honor graduate. He was subsequently assigned to teach at the Naval War College.
CH Demy, although promoted to CDR, FOS to CAPT. He was told this was due to “lack of operational time.” However, his fitness reports all show top 1%, he worked for two Chiefs of Chaplains, and he was specifically requested to go to the Chaplain School and the Naval War College. Any lack of “operational” time was not due to a failure on his part, but a result of the system which assigned him to these important positions based on his demonstrated abilities and skills. The failure to select CH Demy in light of his outstanding record can only be attributed to denominational biases against Non-liturgicals. CH Demy was selected for involuntarily retirement by the FY08 Commander selective early retirement (“SER”) Board and retired in June 2008. 12. PATRICK T. DONEY (Gibson) resides at 121 Buckhorn Dr., Greenville, SC 29608. The Navy turned down CH Doney’s first application to become a Navy chaplain in1971. He was endorsed by the Associated Gospel Churches. After the intervention of his endorser and Senators,
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who were on the Armed Forces Committee, the Navy offered him a commission in the Naval Reserve. Several years later at a chaplain’s convention, CAPT Eugene O’Brien, a Catholic priest who ran the accessions branch at the time CH Doney originally applied, told CH Doney: (1) the reason the Navy turned him down the first time was because he was a graduate of Bob Jones University; and (2) he was commissioned only because several senators with important posts on the Armed Services Committee intervened.
From 1972 until 1977, CH Doney volunteered numerous times for short active duty tours in the hope of establishing a record and eventually being allowed to come on active duty. It was not until he spoke with RADM O’Connor at the conclusion of a short term active duty assignment in 1977 that he was allowed to come on active duty in 1978.
His first assignment was with the First Marine Division at Camp Pendelton, followed by assignment to a guided missile cruiser, the USS LEAHY. Although he was promoted in the Reserves in 1977, he was considered for promotion to the grade of CDR on active duty after a relatively short period of time and was FOS several times, which led to his return to the Naval Reserve in 1983. The Navy also turned down his request to transfer from the Reserves to the Regular Navy.
After returning to the Reserves, CH Doney continued to volunteer for numerous short term assignments. One of those, shortly after returning to the Reserves, sent him to Adack Island in the Aleutians to meet a need for a Protestant chaplain at a Navy base. A lady at Adack asked CH Doney to baptize her by immersion, which he did. The Catholic priest at Adack later expressed his anger to CH Doney and accused him of stealing sheep because the lady occasionally attended Mass. Although CH Doney explained the lady had requested it and as a Protestant chaplain who believed in baptism by immersion, he had a duty to meet her free exercise needs, the priest
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threatened to report him for “proselytizing”. CH Doney was not selected for promotion to CDR in the Reserves, despite his numerous
short, temporary active duty tours and his outstanding record. It is believed this and the Navy’s failure to allow him on active duty was the result of prejudice against him because he was a graduate of Bob Jones University’s seminary, a conservative, evangelical seminary, and because he angered the Catholic chaplain at Adack. The presence of a Catholic on every board ensured he would not receive a fair hearing, either on active duty or in the Reserves. 13. JOSEPH DUFOUR (Gibson) resides at 30138 Lilac Rd., Valley Center, California. He is currently assigned to the USS NIMITZ, an aircraft carrier based in San Diego, CA. He entered active duty September 21, 1992, and is endorsed by the Bible Churches Chaplaincy, a Nonliturgical faith group. CH Dufour had a successful and productive career prior to his assignment to the Naval Support Activity at Naples, Italy (Naples) as evidenced by his fitness reports and his promotion to LCDR. He is one of several named plaintiffs who have been victimized by the Navy's oppressive culture of prejudice against Non-liturgical chaplains and faith groups that has come become a pattern and practice of bias at Naples, orchestrated by its Liturgical command chaplains. For example, no evangelical chaplain who has served under his Catholic command chaplain at Naples, CH (CAPT) Rock, has ever been subsequently promoted on active duty. This systematic prejudice at Naples has resulted in a consistent pattern of threats, harassment, and professional and personal attacks resulting in biased fitness reports designed to destroy his opportunities for promotion and a Navy career.
Because CH Dufour challenged CH Rock over his prejudice and bias toward Non-liturgical Protestants and their programs at Naples, on information and belief, CH Rock contacted CH Dufour’s Catholic command chaplain on the NIMITZ, a Boston priest like CH Rock. His new
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command chaplain undermined CH Dufour’s ministry and career and ensured CH Dufour will FOS to CDR. CH Dufour is currently assigned to Camp Pendleton. 14. FLOYD C. ELLISON (Gibson) lives at 535 East J Street, Chula Vista, CA, 91910-6414. Endorsed by the American Baptist Convention, a Non-liturgical faith group, he was commissioned as a Navy Chaplain in the Naval Reserve in 1972 and reported for active duty in February 1974. CH Ellison had a distinguished career marked by excellent fitness reports, evidenced by his promotion to Lieutenant Commander in August, 1978, CDR in May 1984, and CAPT in August 1991. CH Ellison was selected for involuntary retirement by the fiscal year (FY) 97 SER board and was retired August 1997. In selecting CH Ellison for involuntary retirement despite his outstanding record of service, the SER Board ignored the records of other chaplains with records substantially inferior to his using the improper criteria of faith group affiliation rather than religiously neutral criteria such as military performance and potential. Statistical analysis shows the presence of a selection board member with the same or similar faith tradition as a candidate statistically increases the candidate’s chances of favorable treatment by the board, in the SER context, retention. There was no Non-liturgical chaplain board member on his SER board and the grant of civic authority to a chaplain on the board violated the Establishment Clause. 15. LARRY FARRELL (Adair) resides at 216 White Oak Blvd., Jacksonville, NC 28546. Chaplain Farrell is endorsed by the Church of God, Cleveland, TN, a Non-liturgical faith group. He entered active duty in 1984. He was selected for promotion to Lieutenant Commander but, because he is not a liturgical and the Navy’s prejudice against his Pentecostal faith, he was not selected for promotion to Commander in FYs 1998, 1999, and 2000, despite outstanding fitness reports and an exemplary career. CH Farrell was forced to retire due to statutory limits on FOS LCDRs.
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16. ALAN GARNER (Gibson) resides at 7834 W. Hearn Rd., Peoria, AZ 85381. He was a Chaplain Candidate Officer from January 1989 to April 1992 when he entered active duty as a Navy chaplain. He is an ordained Independent Baptist minister and endorsed by the Bible Churches Chaplaincy.
After an initial assignment aboard the guided missile cruiser USS LEAHY, CH Garner was assigned to the Naval Medical Center San Diego, CA. There LT Garner covered more hospital wards than any other chaplain on staff, facilitated two support groups, and helped train hospital staff in patient pastoral care. He was handpicked to deploy with a Navy Fleet Hospital for six months as part of the United Nations Protection Forces. He served as Division Officer over nine enlisted Religious Program Specialists (“RPs”) and successfully prepared his department for a major inspection. CH Garner was recognized for his excellent performance with outstanding fitness reports until the new Catholic command chaplain, CH (CAPT) Young reported to the Medical Center six months before LT Garner was scheduled to leave. In CH Garner’s final fitness report for his tour at the Medical Center, CAPT Young deliberately ignored LT Garner’s outstanding performance and accomplishments, downgraded him in the areas of professional expertise and teamwork, and placed LT Garner in the “must promote” category, a significant reduction from his previous rating of “early promote.” CH Young never offered any explanation for the poor marks or the lower promotion recommendation. Compared with his previous outstanding fitness reports, CH Young’s evaluation cast CH Garner’s performance in a bad light.
At the same time CH Young downgraded CH Garner’s performance, the Medical Center recommended CH Garner be given the Navy Commendation Medal for his outstanding performance in actions that occurred during the same time frame in which CAPT Young found CH Garner’s performance deficient. While CH Young was savaging CH Garner’s career, the
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Medical Center was thanking and rewarding him for the same performance of duty. CH Young’s evaluations resulted in CH Garner’s FOS to LCDR, a fact acknowledged by the Bureau of Personnel (“LT Garner’s fitness reports for the period 1 February 1996 to 20 July 1996 display a negative trend in performance and severely impacted the competitiveness of his record.”). CH Garner was forced to leave active duty, but was subsequently promoted to LCDR in the Naval Reserve and served in Iraq when his reserve unit was activated. He retired in the Naval Reserve in January 2009.
CAPT Young has been the subject of several investigations, including allegations he favored Catholic chaplains in his ratings while trashing the careers of Protestant chaplains. 17. DAVID GIBSON (Gibson) resides at 6008 Yellow Rose Dr., Pensacola, FL 32526. He is endorsed by the Church of God, Cleveland, Tennessee, a pentecostal, non-liturgical denomination. He was commissioned as a chaplain in July 1984. He began active duty October 31, 1986, and was subsequently promoted to LCDR. Despite outstanding fitness reports and a wide variety of challenging assignments, he was not selected for Commander by the FY99 and subsequent promotion boards. At the same time it denied CH Gibson promotion to Commander, the Navy selected other chaplains with inferior records based on the Navy’s bias against non-liturgical chaplains and preference for liturgical chaplains.
CH Gibson was subsequently selected by the FY03 Commander board. That board had as a member an officer who had formerly rated and/or supervised CDR Gibson. CDR Gibson believes that had line officers been making the selection decisions when he was first considered for CDR, he would have been selected based on his record. CH Gibson’s promotion history reflects that of other Pentecostal and charismatic Navy Chaplains. This can be attributed to the CHC’s Catholic reserved seat policy and stacking boards with liturgical chaplains, many of whom disapprove of
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Pentecostal theology and worship practices. 18. JOHN GORDY (Gibson) lives at 516 Sage Rd. North, White House, Tennessee. He began his military career as an enlisted man in the U.S. Marine Corps from January 1978 to December 1981. He then attended college and seminary and was commissioned as an Ensign in the CHC in 1987 as a Chaplain Candidate. He entered active duty in August 1988, endorsed by the Church of God, Cleveland, Tennessee. He compiled an excellent record and was promoted to LCDR in September 1998. He was selected for and successfully completed postgraduate school. When he reported to NSA Naples, the Catholic command chaplain, CAPT Ronald Buchmiller told CH Gordy, “You know I have a reputation for ruining evangelical careers.” CH Buchmiller is the same command chaplain who ended the careers of several other Non-liturgical chaplains assigned to Naples. CH Buchmiller then proceeded to rate CH Gordy in a manner that guaranteed he would not be selected for CDR, and CH Gordy was subsequently FOS to CDR. CH Gordy’s failure to be selected despite his outstanding performance, as indicated by his record prior to Naples, his promotion to LCDR and selection for postgraduate school, is due to the CHC’s tolerance of the anti Non-liturgical attitude exhibited by and boasted about by CH Buchmiller.
At his 2003 deposition in Naples, Italy, CH Gordy testified that when he first heard of the Adair and CFGC lawsuits, he dismissed their claims. However, he changed his view after his assignment at Naples where he was confronted by CAPT Buchmiller’s anti-evangelical prejudice and hostility and the CHC’s and Navy’s willingness to condone the prejudice and hostility rather than address it decisively. CH Gordy retired due to his FOS. 19. RICHARD F. HAMME (Adair) originally identified by the pseudonym John Witherspoon, resides at 15826 Vista Dr., Montclair, VA 22025. He enlisted in the U.S. Navy in 1971, was selected for and entered the U.S. Naval Academy in 1972, and upon graduation in 1978, was
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commissioned as a Second Lieutenant in the U.S. Marine Corps. He entered flight school in 1978, graduated as an aviator in 1980, and served with the Marine Corps, including participation in the Beirut, Lebanon peace keeping mission in 1983, and left active duty in January 1984 to begin seminary. He was accepted into the Navy’s Theological Student Program. After graduation from seminary in May 1987, he was commissioned as a Chaplain and entered active duty in the CHC August 1987.
After a year and a half as a staff chaplain with Destroyer Squadron 4 in Charleston, SC, CH Hamme was reassigned to Destroyer Squadron 6 as its supervisory chaplain, a LCDR’s position. The CHC contacted him to tell him it wanted him to go to post-graduate schooling and then selected him for a management and administrative degree at the Lyndon Baines Johnson School of Public Policy at the University of Texas, a prestigious assignment because there was only one such opportunity and the post graduation utilization tour was to a high level staff. Shortly after starting his post-graduate schooling in 1991, CH Hamme was notified of his first non-selection to LCDR. The LCDR selection rate that year was 70%. He was told the Deputy Chief of Chaplains, RADM White, reviewed his record and submitted a report to the GAO saying his nonselection was a mistake, there was nothing in his record which warranted his non-selection, and he would probably be selected by the next board, thereby justifying his continuation in post-graduate school at government expense. CH Hamme again FOS for promotion to LCDR despite his outstanding record evidenced by letters from Admirals who reported he was among the top chaplains they had served with. The selection rate for his year of consideration was 65%.
CH Hamme was separated from active duty in March 1993 and entered the Reserves. He was selected for LCDR in the Reserves in 1993, although the selection rate the year he was selected was only 30%. A board member told him he was the second chaplain selected because of his
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outstanding record. CH Hamme asked to return to active duty after his promotion in the Reserves, but his request was denied; he was told the regulations did not allow for the recall of Reservists above the grade of LT.
CH Hamme initially joined the suit under the pseudonym JOHN WITHERSPOON because when the suit was filed, he was being considered for promotion to Commander and subsequent consideration by the APPLY board which selects Reservists for the limited number of pay billets. At this time, another plaintiff overheard two senior Reserve officers discussing CH Hamme and his outstanding career. The witness heard them threaten to destroy CH Hamme’s career if they had the opportunity. The APPLY board did not select CH Hamme for a paid Reserve billet. He was subsequently selected to Commander in the Reserves and was involuntarily retired July 2004 after 28 years of commissioned service.
CH Hamme’s FOS for active duty LCDR can be attributable only to denominational prejudice, given his Naval Academy training, excellent record as a Marine aviator, outstanding reports as a LT, selection as a supervisory chaplain while still a LT, his selection by the CHC for post-graduate education, and the Deputy Chief of Chaplain’s report to the GAO. His selection for post-graduate school by the CHC is especially indicative of his strong record because the CHC selected him for post-graduate study in an area where the post-graduation assignment would be a career-enhancing high level staff position responsible for policy and management. His early selection for LCDR as a reservist when the LCDR selection rate was 30% speaks volumes about the strength of his record. 20. FURNISS HARKNESS (Adair) is a Non-liturgical Navy Reserve chaplain residing at 400 Green Acres, Memphis, TN 38117. He entered active duty in March 1987 under the endorsement of the Non-liturgical Christian Church (Disciples of Christ). Although he had outstanding fitness
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reports, he found that the Navy had two systems, one for Liturgical chaplains and one for Nonliturgical chaplains. After unsuccessfully attempting to obtain the same information concerning graduate school that was provided to liturgical chaplains, he realized that those efforts to obtain equal treatment had effectively ended his Navy active duty career. He left active duty in June 1995 and attempted to return to his Reserve status. In an illegal act of retaliation, the Navy CHC issued a new instruction requiring the C HC’s approval [Of What?] in an attempt to deny his Reserve affiliation. CH Harkness asked the Navy Inspector General (NIG) to investigate the legality of that attempt. The NIG subsequently found the CHC’s actions and its “new policy” to be without authority, vindicating CH Harkness’s position. The report admonished several senior chaplains for retaliation. The CHC’s retaliatory and discriminatory actions, based on religious prejudice, precluded CH Harkness from drilling for a year and a half.
As a further act of retaliation, the Navy failed to select CH Harkness to the grade of Commander in mid-2000, despite his outstanding record and his graduation from the Naval War College. The reason for his non-selection was his participation in this lawsuit, his previous attempts to obtain equality in treatment, and his prior complaint to the NIG concerning the CHC’s illegal attempt to deny him Reserve affiliation. One of the board members on his selection board was implicated in his prior successful NIG retaliation complaint.
Although eventually selected for Commander, CH Harkness was illegally denied promotion to Captain by a selection board composed contrary to the precept. The Navy’s further acts of retaliation include denying him active duty for training despite being picked for such a position by the APPLY board, although the need still existed and the command requested him. The Navy continues to deny him promotion as an act of retaliation despite his outstanding record and achievements unmatched by other Reservists, including special active duty as the manager of
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Navy Support for the National Boy Scout Jamboree. 21. ROBERT A. HATCH, JR (Gibson) currently lives at 2245 Autumn Rd., Poplar Bluff, MO, after retiring as a US Army chaplain. He is endorsed by the American Baptist Churches of the USA.
CH Hatch began his career as a Navy Chaplain in 1983. After completion of his initial threeyear tour, he was not allowed to continue on active duty despite outstanding performance reports and recommendations for his retention. The Commanding Officer, Marine Air Control Group 18's memo to the Commanding General, First Marine Aircraft Wing, described CH Hatch as “By far, one of the best Chaplains that I have encountered.”
After separation from active duty in 1986, CH Hatch served in the Naval Reserve until 1989. CH Hatch’s excellence and value to the CHC is evidenced by the fact that in his three-year period as a Reservist, he had 10 active duty training assignments when the norm is one per year. Included in this active duty training was a 103 day period (4/3/88 to 7/15/88) in the Chief of Chaplains Office to coordinate the events surrounding the retirement of the Chief of Chaplains, RADM McNamara, and the assumption of the office for the new Chief, RADM Koeneman. RADM Koeneman rated CH Hatch for this period and recommended he be retained and promoted.
CH Hatch is one of the large number of Non-liturgicals who were never allowed to complete their career because of the CHC’s efforts to limit the number of Non-liturgical chaplains. He was forced out by the Navy’s illegal prejudice without getting an opportunity for promotion. He subsequently became an Army chaplain.
While at Ft. Stewart, GA, in 2001, CH Hatch learned of the litigation against the Navy from a former Navy Chaplain who is now an Army chaplain and plaintiff in the CFGC litigation. After
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reviewing the issues and evidence related to this action including the Stafford Report, the Ellis Report and the Adair Class Action Complaint, he became aware the CHC’s biased policies favoring Liturgical chaplains and prejudicing Non-liturgical chaplains such as himself was the reason chaplains with weaker records were allowed to continue on active duty and he was not, despite his strong record and endorsements. Prior to this time there was no way for him to know 1) he had a cause of action and 2) the Navy’s proffered reasons for his non-continuation were lies and deceit designed to conceal the Navy’s prejudice against Non-liturgical Chaplains. The Navy’s official policy was that its career continuation system was fair and its criteria unrelated to faith group. Until he read the cited documents, he had no evidence the Navy and its CHC’s misrepresentations were part of an extensive program to conceal their illegal prejudice. 22. GARY HEINKE (Gibson) resides at 2030 Rockvale Road, Lancaster, Pennsylvania. He was commissioned as a chaplain in March 1982, endorsed by the Baptist General Conference. CH Heinke’s outstanding career is reflected in the fact the CHC first selected him for postgraduate school (Duke University) and then as its first chaplain to attend and graduate from the Marine Corps Command and General Staff College (C&GSC), an opportunity for which only a few officers with outstanding records are selected each year. Following completion C&GSC, he was assigned to the USMC Combat Development Command, Quantico, Virginia. Although he was only a LCDR, he was initially assigned to a CDR billet (the Marine security battalion). During that assignment, the command chaplain was relieved for cause. Lieutenant General (LTG) Krulak, the base commander and Deputy Commandant of the Marine Corps, assigned LCDR Heinke as the base’s deputy command chaplain, a CDR billet, placing him over several senior Liturgical chaplains. When CH Heinke received orders to duty on a ship, LTG Krulak used his influence to change those orders so CH Heinke would remain at Quantico to keep the momentum
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in the evangelical Family Worship Center and ministry, and to provide stability in the Chaplain Department.
Despite being selected for postgraduate education, the Marine Command and General Staff College, his assignment to two CDR billets and his reputation as demonstrated by LTG Krulak’s intervention in changing his orders and assigning him over more senior chaplains, CH Heinke FOS to CDR in FY93. Subsequent to his failure of selection, CH Heinke was told that the president of the board, RADM White, did not like LTG Krulak and because of LTG Krulak’s recognition of CH Heinke as an outstanding chaplain, used the board process to ensure that CH Heinke would not be promoted. In other words, CH Heinke’s FOS was RADM White’s perverted means of retaliation against LTG Krulak and the Liturgical hostility toward successful evangelicals like CH Heinke. A board recorder, without divulging board proceedings, commented to CH Heinke that “I thought you were in, you had made it, but something happened at the last minute, I can’t explain it, you did not make it.”
Before the next board, the CHC assigned CH Mike Burt as the command chaplain at Quantico shortly before CH Heinke and LTG Krulak were scheduled to leave, and just before CH Heinke’s fitness report was due. CH Burt, a Liturgical chaplain, indicated he was an emissary from RADM White. He said his mission was to make sure CH Heinke did not get promoted. CH Burt said, “We can’t let you leave here [Quantico] without being punished.” When asked, “Punished for what?” CH Burt said, “You know, the evangelical ministry here and Krulak.” When asked who “we” referred to, CH Burt replied, “The Chief of Chaplains.” CH Burt also said, “If you try to fight this, you’ll lose.” CH Burt marked down CH Heinke’s fitness report one letter grade. When CH Heinke wrote a letter to GEN Krulak, who had become the Commandant of the Marine Corps, to protest the lowering of his fitness report grade, he received a letter from
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CH (CAPT) Pucherrelli stating that if CH Heinke had issues he needed to submit them through CH Pucherrelli. CH Pucherrelli had been at Quantico a portion of the time CH Heinke was there. CH Heinke had been told, “You were either one of Puche’s boys or not....” Since CH Heinke had been in conflict with CH Pucherrelli over numerous issues, CH Heinke was not one of his boys. CH Heinke wrote a follow on letter to GEN Krulak, but received no response.
The entire time CH Heinke was at Quantico, there was constant conflict over approaches to ministry between the Liturgical chaplains, who held the higher ranks, and the Non-liturgical chaplains, who performed most of the ministry. The Non-liturgicals started a “Family Worship Center,” a contemporary worship service initially located in a remote location, the high school cafeteria. The service grew and had to be moved to larger and newer accommodations, and competed with the base General Protestant Service. LTG Krulak started to attend the Family Worship Center on a regular basis, which created jealousy among the senior Liturgical chaplains. The tension and conflict between Liturgicals and Non-liturgicals was evident in staff meetings and assignments. The Quantico chaplains’ office was a hostile work environment which necessitated LTG Krulak’s personal intervention. The hostility continued after he left.
In addition to putting CH Heinke over chaplains who were senior in grade and having his orders change to enable him to stay at Quantico, LTG Krulak also awarded CH Heinke a Meritorious Service Medal, which angered Liturgical chaplains at Quantico.
The reason for CH Heinke’s failure of selection was due to the CHC’s religious hostility towards outstanding Non-liturgicals and, on information and belief, RADM White’s personal hostility and retaliation against GEN Krulak. That RADM White was able to manipulate the system to deny CH Heinke’s promotion (and therefore his career) without accountability shows the CHC promotion system violates the Establishment and Due Process Clauses, i.e., secret career
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ending votes with no accountability. Having FOS twice and facing separation with a loss of pension and other benefits, CH
Heinke retired under the Temporary Early Retirement Act May 1, 1997. This was a constructive discharge. 23. ROBERT L. HENDRICKS (Gibson) lives at 243 Patricia, San Antonio, Texas. He was commissioned as a Navy Chaplain September 9, 1982, endorsed by the Southern Baptist Convention and reported for active duty October 5, 1982. Despite outstanding service as reflected in awards of the Navy Commendation and Navy Achievement Medals, he was twice FOS to LCDR. He was separated after his second FOS in 1991. CH Hendricks has continued to serve as a chaplain in the Naval Reserve where he was promoted to LCDR, but the Navy failed to select him for CDR.
In 2002, CH Hendricks began reading documents related to this action including the Stafford Report, the Ellis Report and the Class Action Complaint. He became aware that the reason other chaplains with weaker records were promoted was the CHC’s policies which favored Liturgical chaplains and prejudiced Non-liturgical chaplains such as himself. Prior to this time he had believed the Navy’s false official statements its promotion system was fair, all records were competitive, and faith group was not important. Because of the secrecy of the promotion board process, and the deceit and concealment by the Navy, there was no way for him to know prior to reading the above cited documents he had a cause of action. 24. FRANK JOHNSON (Gibson) currently resides at 2789 Noble Fir Court, Woodbridge, VA. He was commissioned as a Navy chaplain in 1981 and entered active duty in 1985, endorsed by the Southern Baptist Convention, a Non-liturgical denomination. He was promoted to the grades of LCDR and CDR based on his outstanding records and was personally selected for important
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assignments by the Chief of Chaplains based on his reputation and record. He was assigned as the recorder of the FY97 Chaplain CDR promotion board. Allegations of denominational prejudice and misconduct resulted in both Naval Inspector General and Department of Defense Inspector General investigations into the FY97 and 98 boards. CDR Johnson was interviewed by the investigators. Subsequently, he was considered for promotion to CAPT for which he FOS. Because of his outstanding record as compared to others who were selected, there is no explanation for his FOS other than retaliation for the testimony he gave under oath concerning the FY97 Chaplain CDR promotion board. CDR Johnson retired in 2005 when, after FOS to CAPT, it became obvious his career had reached a dead end as a result of the CHC’s prejudice. 25. MARK R. JOHNSTON (CFGC) enlisted in the Navy in 1973 and was honorably discharged as a 3d class petty officer in 1977, endorsed by CFGC. After completing divinity school, he applied for and was accepted into the CHC in March 1987. Despite recognition for his outstanding work at Camp LeJeune, NC, he was denied continuation on active duty after his liturgical Protestant senior chaplain referred to him as a member of a “splinter sect” and told him, “You preach the Gospel too much.” The senior chaplain’s conduct and attitude toward CFGC created a hostile work environment. The Navy’s failure to continue him on active duty was based on the CHC’s and his chaplain supervisor’s religious discrimination and hostility to Chaplain Johnston’s religious beliefs and faith group. CH Johnston, still endorsed by CFGC, applied for and was commissioned as an Army chaplain. He was stationed at Ft. Sill, OK, when the suit was filed. The Army promoted him to the rank of Major, selected him for post graduate school and assigned him to teach ethics at the U.S. Army’s Sergeant Major’s Academy, Fort Bliss, Texas, and promoted him to Lieutenant Colonel (LTC), the Army equivalent of Navy Commander. He is currently stationed at Ft. Jackson, S.C. He will be forced to retire because of age before he can be
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considered for Colonel (COL). CH Johnston’s injuries include being denied a fair opportunity to compete for a career and
promotions in the Navy, denial of promotion in the Navy, delay in his promotion to O-4, O-5, and denial of his ability to retire as a COL because he had to restart his chaplain career in the Army. 26. LAURENCE W. JONES (Gibson) lives at 104 River Reach Dr. W., Swansboro, North Carolina. He entered active duty in April 1986. He is endorsed by the Southern Baptist Convention, a Non-liturgical faith group. He was promoted to LCDR in March 1994, and selected for postgraduate school in 1996. He completed his Master’s Degree in Ethics at Duke University’s Divinity School in 1998. With him at Duke were five other Navy chaplains: another male Southern Baptist, two female Southern Baptists, a minority male, and a Liturgical chaplain. Of the six, CH Jones and the other Southern Baptist male were FOS to CDR in 2000. Despite an excellent record including postgraduate schooling, and despite the Secretary of Navy’s guidance such advance schooling was to be considered in a positive light, CH Jones was FOS to CDR. Given his record, there is no explanation for his non-selection other than the culture of bias and prejudice against Non-liturgical chaplains and faith groups that permeates the CHC. After discovering the Stafford Report and other evidence of denominational preference in promotions in 2001, CH Jones unsuccessfully tried to join the Adair legislation in 2002. CH Jones was statutorily retired due to his FOS to CDR. 27. SAMUEL D. KIRK (Gibson) lives at 4627 Rock Elm Woods, San Antonio, Texas 78249. CH Kirk is endorsed by the Southern Baptist Convention. He entered active duty as a chaplain in March 1982 and was promoted to LCDR in 1989. Stationed on Okinawa from 1987 to1990, CH Kirk increased chapel attendance by 50%. Because of this success he was moved to another chapel. Despite his success in increasing chapel attendance through his preaching and leadership,
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he was not given a favorable fitness report by the senior command chaplain, CH O’Brien, a Catholic priest who gave superior ratings to other Catholics but graded down Protestants such as CH Kirk. The basis for the differing treatment appears to have been faith group preference.
This illegal and prejudicial treatment resulted in his FOS to CDR which terminated his career. He left the Navy after 12 1/4 years active duty. CH Kirk then affiliated with the Reserve, where he is still serving as a Navy Chaplain. 28. KLON K. KITCHEN, JR. (CFGC)Klon K. Kitchen, Jr. began his active duty as a Navy chaplain in June 1987. Despite outstanding fitness reports and participation in Operation Desert Storm and two hurricane relief operations, he was twice FOS for LCDR based on his religious beliefs as reflected by his CFGC endorsement. Following his first non-selection to LCDR, RADM Muchow, the Navy Chief of Chaplains, reviewed CH Kitchen’s record and assured CH Kitchen he would be selected for promotion the next time his record was reviewed. CH Kitchen was not selected for LCDR, and was separated for two FOS. This would normally have precluded his being able to serve in another Armed Force. The Army Chaplain Corps contacted him after his separation from the Navy and asked if he would be interested in a commission as an Army Chaplain, an invitation CH Kitchen accepted. He is now an Army chaplain and has been promoted to the rank of Major. He lived in Honolulu, HI, when the suit was filed, but is currently assigned to a U.S. Army Headquarters unit in Korea.
CH Kitchen’s injuries include being denied a fair opportunity to compete for a career and promotions in the Navy, denial of promotion in the Navy, delay in his promotion to O-4 and subsequent grades and ranks because he had to restart his chaplain career in the Army. 29. FRANK S. KLAPACH (Gibson) lives at 3810 S.E. Conifer Park Dr., Port Orchard,
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Washington. He entered active duty as an enlisted sailor May 11, 1970, and was released from active duty in 1974. When he entered the Navy in 1970, CH Klapach was a Catholic. During his enlistment, he had what Protestants call a “born again” experience. This concept and experience is fundamentally at odds with Catholic teaching. At the time of his born again experience, CH Klapach’s Catholic pastor was CH Thomas Kuhn, who became angry when he discovered the change in then seaman Klapach’s faith perspective and his subsequent joining the Assemblies of God, an evangelical, Non-liturgical faith group.
When he left the Navy in 1974, CH Klapach continued in the enlisted reserve, attended college and seminary, and with an endorsement by the Non-liturgical and pentecostal Assemblies of God, was commissioned in the Chaplain Candidacy Program January 5, 1976. He entered active duty as a Navy chaplain December 31, 1977, and was subsequently selected for postgraduate education and promoted to LCDR.
The first time the Navy considered CH Klapach for promotion to CDR, CH Kuhn, his former Catholic pastor, was a board member. Despite an outstanding record, the board with CH Kuhn as a member did not select CH Klapach,27 but he was selected on his second look.
After promotion to CDR, CH Klapach reported to the Puget Sound Naval Shipyard (“PSNS”) as the senior chaplain in rank, experience and with the advantage of a postgraduate degree. Yet the PSNS command, with the reported concurrence of the Chief of Chaplains, RADM Muchow, placed CDR Klapach under a Catholic LCDR chaplain. There is no other explanation for this gross breach of military discipline and order except the Navy’s overt culture of religious prejudice against Non-liturgical chaplains and their faith groups and its preference for Catholics.
1 The Navy Inspector General’s investigation of CH Washburn’s failure to be selected for CAPT produced testimony showing that one hostile board member could guarantee that a chaplain would not be selected for promotion.
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Despite his completion of postgraduate schooling, an outstanding career and military record, CH Klapach was selected for involuntary early retirement as a CDR. His improper FOS to CDR in his first consideration prejudiced his record before the SER board. The Navy ignored the records of chaplains with substantially inferior records in selecting him for separation under the SER program. The Navy’s basis for selecting CH Klapach was his Non-liturgical faith group identification. 30. TOM KLAPPERT (Gibson) resides at 7699 Kuhn Road, Greencastle, Pennsylvania. He began his Navy career upon graduating from the Naval Academy in 1973. He served five years in the Marines, rising to the rank of Captain (O-3), and remained in the Reserves from 1978 to 1982 while he attended seminary. Endorsed by the Independent Fundamental Churches of America (now Bible Churches Chaplaincy), he was commissioned as a chaplain LTJG in September 1982, promoted to LT in 1983, LCDR in 1991 and CDR in 1998.
CH Klappert was assigned to Quantico, Virginia at the Marine Corps Headquarters from June 1992 to June 1995. While there, he was embroiled in the conflict between the Liturgical senior chaplains. CH Klappert became a central figure in the investigation of the Quantico command chaplain for serious misconduct resulting in the relief of the command chaplain for cause. This caused resentment among the senior Liturgical chaplains at Quantico as well as others in the CHC leadership, who resented the fact the command chaplain was caught and disciplined.
After Quantico, he was assigned to the Portsmouth Naval Yard. While there, he experienced great difficulty with a female organist and music director who caused division in the congregation and other difficulties. CH Klappert had finally determined to terminate her employment because of the division she was causing in the chapel; however, shortly prior to his scheduled rotation date from Portsmouth and before he was able to take that action, the organist filed a complaint alleging
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discrimination and harassment against CH Klappert. Although she initially obtained an ex parte protective order limiting CH Klappert from contact with her, at a subsequent hearing the judge vacated the order, found there was no substance in the complainant’s allegations and “this is not sexual harassment.” Nonetheless, the Navy began an investigation. Although CH Klappert submitted 16 witnesses’ names who would verify the falsity of the allegations, the resulting investigation only interviewed 6, and perverted the testimony of those who had made statements so the meaning was entirely opposite to the witnesses’ testimony.
Although the base commander had initially supported CH Klappert and expressed his confidence the investigation would refute the false allegations, it became apparent to CH Klappert that his commander had been told supporting CH Klappert was not in the base commander’s career interests. CH Klappert believes this was retaliation for his previous opposition to religious oppression at Quantico and other places. It became obvious to CH Klappert this was retaliation for his involvement in the relief of the Quantico command chaplain, his career was over and he was not welcome in the CHC, and he was a target because of his previous success. Faced with an expensive and protracted fight should he choose to dispute the charges legally, he submitted his resignation. His discharge was involuntary because it was motivated by coercion and premised on retaliation. 31. JAN C. KOHLMANN (Gibson) was a U.S. Army Chaplain stationed at Ft. Sill, OK, when he joined to lawsuit. He currently resides at 928 W Vine Street, Radcliffe, KY 40160.
CH Kohlmann began his naval career as an enlisted torpedo man aboard a fast-attack submarine from 1970 to 1974, reaching enlisted grade E-5 when he was 19 years old. He became a Chief Petty Officer (E-7) in the Reserves in 1982. After completing college, CH Kohlmann was initially commissioned as an Ensign (O-1) in the Chaplain Candidate Program in June 1984 while
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attending seminary. He was then commissioned as a LTJG Chaplain in the Reserves in July 1986 and entered active duty May 25, 1988 as a LT. He is endorsed by the Bible Churches Chaplaincy.
When he expressed his view of certain subjects based on his understanding of scripture, he was told by his senior chaplain (CAPT) that “the Navy CHC did not need any prophets” and this was Navy CHC policy, not just the senior Chaplain’s. Despite his good fitness reports, he was twice FOS to LCDR, primarily on the basis of the Navy’s bias against Non-liturgical chaplains and their faith groups, and its secret voting system without accountability that encourages denominational bias.
CH Kohlmann was separated on September 30, 1995 after he twice FOS to LCDR. He remained in the Naval Reserve from January 1996 to December 1997. He entered active duty as an Army chaplain on January 12, 1998 and retired in June 2007.
While assigned to Korea as an Army chaplain, he heard of the Navy chaplain lawsuits and requested information. After reading the Adair Complaint, he understood the Navy had concealed its prejudicial policies by representing its promotion system was free of bias and denying all allegations to the contrary. This concealment and deceit precluded him from discovering the basis for his cause of action until he was informed of the chaplain litigation, well after the Adair plaintiffs had filed their action. 32. ALLEN L. LANCASTER (Gibson) resides at 172 North Liberty Spring Rd., Suffolk, VA 23434. His case represents a prime example of the Navy’s unconstitutional hostility and prejudice toward its Non-liturgical chaplains. CH Lancaster began his naval career in 1957 as an enlisted sailor, serving on active duty until 1961 and thereafter in the Naval Reserve until August 1980 (23 years) when he was commissioned as a Navy Chaplain. Endorsed by the Associated Gospel
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Churches, an evangelical, Non-liturgical faith group, he then spent 21 years as a Navy Chaplain. After completing Chaplain School, his record shows a truly outstanding career, with every
fitness report showing grades of “A” for all performance categories and all recommendations for “early promotion.” He was promoted to LCDR.
Just prior to his first time in the primary zone for selection to CDR, CH Lancaster was selected to attend the Chaplain Advanced Course on the basis of his stellar record, a course which is normally available only for CDRs or those selected to be CDRs. In 1991, he was not selected for promotion to CDR. Nonetheless, because of his strong record, CH Lancaster was assigned to a high visibility position as chaplain on the USS SAIPAN and was selected for promotion to CDR his second time in zone.
Knowing he would be in the zone for CAPT in 1996, CH Lancaster reviewed his official file and found it was missing an outstanding fitness report dated July 1995 from another high visibility position. His rating officer sent a certified true copy of the missing July 1995 report to the Chief of Naval Personal on June 19, 1996. When CH Lancaster again reviewed his official file microfiche to make sure his record was complete, his July 95 fitness report was still missing. In February 1997, CH Lancaster again sent a copy of the July 95 report to the Navy CHC detailer for inclusion in his file. Following his fourth attempt to ensure his file was complete before the Chaplain CAPT selection board met, the detailer’s office told CH Lancaster his missing report was in his records. CH Lancaster was not selected for CAPT and then discovered his July 95 fitness report was still missing, despite his four attempts to provide the missing report and the detailer’s assurance the record was complete.
Whether the board actually reviewed CH Lancaster’s record is a question. The promotion board’s senior recorder is supposed to notify a chaplain’s command if a record before the
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promotion board is incomplete. After the board, CH Lancaster asked the CAPT selection board’s senior recorder if his record was complete. CH Epperson replied that all the records were complete. However, a review of his record showed the July 95 report was still missing. CH Lancaster’s unit reported it had received no communication from the CHC indicating his record was not complete during the time the promotion board met. Several weeks later, he contacted board member CAPT (now RADM) Barry Black who said, “I do not recall anyone not considered due to a missing report.” How could the board have reviewed CH Lancaster’s record if all the records before the board were complete, none were missing, yet his record was incomplete?
In November 1997, en route to his new assignment to Camp Lejeune, North Carolina, CH Lancaster stopped in Washington D.C. to again attempt to complete his record. He was introduced to LCDR Burdec, Naval Personnel Officer Records Section, who took the report and said, “I will personally ensure that it gets in your file.” However, when the next Chaplain CAPT board convened in May 1998, it notified CH Lancaster’s unit his official record still lacked the July 1995 fitness report. Deployed with the Marines at the Twenty-Nine Palms, CA, training center, CH Lancaster called Camp Lejeune. CH (CDR) Cash forwarded the missing report to the board by fax (January 1997). The July 95 report still did not reach his official record, a fact the BCNR noted in denying CH Lancaster’s subsequent request for a new promotion board. The Navy retired CH Lancaster as a CDR October 31, 2001 after 44 years of Naval service.
Overt and deliberate prejudice against Non-liturgical Chaplains and their faith groups is the only explanation for the consistent failure of seven documented attempts to get an important, exceptional fitness report into CH Lancaster’s record. CH Lancaster’s saga demonstrates a pattern and practice of sabotaging outstanding Non-liturgical chaplains so liturgically dominated Chaplain boards will have an excuse for denying Non-liturgical chaplains a fair opportunity for
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promotion, thereby maintaining Liturgical domination of the CHC. 33. MICHALE LAVELLE (Adair) resides at 13921 East Poelstra Street, Vail, AZ. 85641. Despite an outstanding career as a Non-liturgical Navy chaplain including participation in Operation Desert Storm and a preponderance of duty with the Marines, he was passed over for Commander in FY 1998. Faced with the reality that few, if any, chaplains are subsequently selected once they have been non-selected, and to avoid further humiliation, prejudice and the possible financial injury he and his family might suffer if he continued to remain on active duty, CH Lavelle applied for early retirement under the Temporary Early Retirement Act (TERA) and retired on October 1, 1998.
A Department of Defense (DOD) investigation of that FY 98 board following a complaint of religious discrimination by another chaplain revealed that the board had illegally used faith group as a promotion criterium and promoted liturgical chaplains with records inferior to those who were not selected, including CH Lavelle. See ¶ 52 infra. But for the Navy’s illegal prejudice and faith group quota system, he would have been promoted and continued his Navy career. The Navy’s faith group prejudice and the realities of the Navy’s promotion and separation policies constitute a constructive discharge. 34. GEORGE W. LINZEY (Adair) resides at 1111 Seacoast Drive #61, Imperial Beach, CA 91932. He was commissioned as a chaplain in the Naval Reserve in April, 1975 and entered active duty as a Navy chaplain on September 6, 1975, under the endorsement of the National Association of Evangelicals. Although he was the youngest chaplain to make Captain, he was selected for early retirement by the FY 1998 SERB. Of the five chaplains selected by that board for early retirement, four were Non-liturgical. In the spring of 1997, RADM Koeneman, a former Chief of Chaplains, made a special trip to visit CH Linzey at Great Lakes Naval Training Center
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where he was Command Chaplain. RADM Koeneman told CH Linzey to “get your resume ready”, it was time for him to return to civilian life, and gave him the name and contacts of a church looking for a music minister. As predicted, CH Linzey was selected for involuntary retirement in January 1998. RADM Koeneman’s warning and advise is evidence CH Linzey was personally pre-selected by the Chief of Chaplains (hereafter the “Chief”), rather than by the SER board based on an independent records review. The Chief’s Non-liturgical selections for early retirement, including CH Linzey, were based on religious reasons, rather than on the basis of the selectees’ records as chaplains. 35. JAMES LOOBY (Gibson) resides at 1713 County Rd. 318, Early, Texas. He began his military career with the U.S. Air Force in June 1967, where he served until June 1971. He completed seminary in 1975 with a MDiv and entered the CHC in February 1984, endorsed by the Southern Baptist Convention. He served in a variety of assignments and was promoted to LCDR in April 1991 and subsequently to CDR by the FY96 promotion board. However, he was not selected by the FY03 CAPT board. He subsequently learned that a rumor was circulating among the CHC leadership that CDR Looby had been injured on active duty, was ineligible for promotion and had performance problems. On information and belief, this view was shared by RADM Iasiello, the president of his first CAPT board. Because of his record, there is no other explanation for his FOS except reliance on an unfounded rumor contrary to his record and the failure of the CHC promotion system to ensure votes are based on the record, rather than denominational bias or information or opinion outside the record. CH Looby retired from the Navy in 2005. 36. MANUEL MAK (Gibson) resides at 5 East Columbia St., Danville, IL 81832. He began his naval career when commissioned as an Ensign in the Theological Student Program in 1982. He
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was commissioned as a LTJG in the Navy Reserves in 1984. He remained in the Reserves until March 1986 when he entered active duty, endorsed by the Southern Baptist Convention.
At both First Marine Division and his next assignment at Naval Air Station (NAS) Miramar, he experienced prejudice based on his Non-liturgical faith. He had been at Miramar NAS for a considerable period of time when his new Liturgical command chaplain told CH Mak he had to prove himself. The command chaplain had no basis for his criticism and rated a Lutheran above CH Mak.
CH Mak was selected as the force chaplain to the Naval Support Force Antarctic, a position of great responsibility requiring the ability to function in an independent environment where he supervised six contract chaplains and two religious program specialists. He was FOS to LCDR and forced to leave active duty in 1994. Returning to the Reserves, he was promoted to LCDR in 1995.
His difficulty in the Navy, including his FOS while on active duty, are due to the Navy’s prejudice against Non-liturgical chaplains and faiths. In failing to select him for promotion while on active duty, the Navy selected other less qualified chaplains on the basis of their faith group.
In 2001 while attending a Reserve conference, CH Mak began hearing about this Class Action and the allegations in the Complaint. After reading the Stafford Report, the Ellis Report and the Complaint, he became aware that the reason other chaplains with weaker records than his were promoted was the CHC’s policies which favored Liturgical chaplains and prejudiced Nonliturgical chaplains such as himself. Prior to that time, he had believed the Navy’s representations and its official position its promotion system was fair and faith group was not a factor in promotion decisions. The Navy’s disinformation and deceit kept him from knowing he had a cause of action prior to reading the above cited documents.
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37. WALKER MARSH, JR. (Gibson) resides at 125 Whisperwood Blvd., Slidell, Louisiana. He was commissioned as a Navy chaplain in October 1982, entered active duty in January 1984 and was promoted to LCDR in November 1990. He is endorsed by the Southern Baptist Convention.
In September 1985, he was assigned to the Naval Training Station, San Diego, CA. The liturgical command chaplain, CH Dempsey, told CH Marsh in his initial interview: “I hope that you’re not planning on making this a career because you already have three strikes against you. You are the wrong sex, the wrong color and the wrong religion.” This indeed was a prophetic utterance. After he arrived at the Naval Training Station, CH Marsh began an alternative Nonliturgical worship service with two other Non-liturgical chaplain LTs, Michael Lavelle and Robert Yourek (with whom the Navy later settled after he filed a claim of religious discrimination, Yourek v. United States, U.S. Court of Federal Claims, 98-772C). Despite being restricted by the command chaplain to an unreasonable time (7:00 am) and still being required to participate in the liturgical General Protestant service, under CH Marsh’s leadership the Non-liturgical service soon grew to approximately 60 attendees. At this point, the command chaplain terminated the service.
After selection for and completion of postgraduate school, CH Marsh was assigned to the U.S. Marine Corps School of Infantry, Camp Pendelton, CA. The Liturgical command chaplain for the base, CH Ha, established a chaplain meeting schedule and other procedures for the chaplains he “supervised” that created direct conflicts between his demands on their time and the time and priority requirements of the unit commanders to whom the chaplains were assigned and who rated them. Rather than address the resulting conflict he had created with the unit commanders themselves, CH Ha demanded his junior chaplains convince their commanders that he, rather than the commanders, was the appropriate official to determine the responsibilities and priorities for their chaplains.
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CH Ha promised CH Marsh he would make sure CH Marsh would never be promoted. CH Ha made it clear the chaplain promotion boards, controlled by Liturgical chaplains, were tools to keep Non-liturgical chaplains in line and subservient to the senior chaplains rather than their unit commanders to whom they were assigned and accountable for ministry. This is another example of the well known CHC’s truism, “the line may rate you, but the CHC promotes you.”
The CHC’s deceit and religious prejudice against CH Marsh and other Non-liturgical chaplains is exemplified in his assignment to the USS BELLEAU WOOD after his first FOS to CDR. His detailer, a member of the board that had not selected him on his first time for CDR, said he needed an unaccompanied tour (i.e., no family) since it would better his chance for selection by the next promotion board because the BELLEAU WOOD assignment would be a supervisory position. When CH Marsh questioned the detailer about his first FOS and the fact that the next board results were not yet known, his detailer said, “Don’t you know you’ll get picked up?” When he reported to the ship, he discovered his assignment was not a supervisory position. After his second FOS while on the BELLEAU WOOD, the CHC told him the Navy would separate him under 10 U.S.C. § 632 and then gave him a series of changing return and separation dates that resulted in a two year involuntary, extended, unaccompanied tour. He spent two years separated from his family as a result of CHC deceit and religious hostility. This is not the type of service or treatment given to Liturgical chaplains.28
Given his record, his selection for post-graduate schooling, and the promotion of other Liturgical chaplains with far inferior records, the only reason for his non-selection for promotion is the Navy’s hostility toward Non-liturgical chaplains and their faith groups, as exemplified by
2 CH Dufour’s command chaplain, CH Jerome Dillon, has been reassigned several times before his tour of duty was complete and assigned as command chaplain on several other ships in an apparent effort to boost his record and career.
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the consistent reservation of a promotion board membership for Catholics and the overrepresentation of Liturgical Protestant on CHC promotion boards. 38. DENISE Y. MERRITT (CFGC) entered active duty in the CHC in February 1990 with prior enlisted service in the US Marine Corps. She was first stationed at Charleston, SC, followed by Quantico, VA, and the National Naval Medical Center in Bethesda, MD.. The Navy subjected her to prejudice and discrimination as a result of her endorsement by CFGC. At Quantico, her liturgical supervisor undermined all CH Merritt’s ministry efforts. After scheduling an interservice chapel concert with Army and Air Force bases in neighboring states, the command chaplain told her to cancel it at the last minute. At Bethesda, her fitness reports cited shortcomings for which she had received no prior notice or counseling and her efforts to correct or challenge the ratings were ignored or rebuffed. She was told by her commanders that the negative comments came from her liturgical senior chaplain, Jane Viera.
At Bethesda Naval Medical Center, she served on twelve hospital committees and performed eight collateral duties. A Catholic chaplain of the same rank served on no committees and performed no collateral duties because he did not speak English well. The liturgical Senior Chaplain rated the Catholic chaplain above CH Merritt.
She left the Navy in May 1998 after her FOS for LCDR and was commissioned as an Army chaplain assigned to Ft. Eustis, VA when the suit was filed. She was promoted to Major and selected for and completed postgraduate school. After completing 20 years of service, CH Merritt retired but was offered and accepted the opportunity to return to active duty. She has retired for the second time and lives at 4405 Biway Cir., Fayetteville, N.C. 28311.
CH Merrit’s injuries include being denied a fair opportunity to compete for a full career and promotions in the Navy, denial of promotion to LCDR in the Navy and the opportunity to
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compete for other promotions, and delay in been promoted to O-4 because she had to essentially restart her chaplain career in the Army. The CHC placed CH Merrit under abusive and hostile chaplain supervisors who inflicted great stress and strain on her and her family. 39. DAVID MITCHELL (Gibson) Dr. Mitchell resides at 142 Prospect Street, Providence, Rhode Island. He entered the Navy CHC in Sept. 1987 with 4 years prior service in the USAF. He was endorsed by the Progressive National Baptist Convention, a Non-liturgical denomination. When he entered the primary zone for promotion to CDR in 2001, he had completed his work for his PhD and had held 3 supervisory billets in which he had received outstanding fitness reports. He was not selected for CDR despite his outstanding record and career.
The president of the CDR promotion board was RADM Iasiello, who as director of the Chaplain School, had supported a female chaplain candidate’s unsupported and false allegation that Dr. Mitchell had sexually harassed her during an interview required for the chaplain commissioning program. Although the subsequent investigation proved his innocence, then CAPT Iasiello indicated to Dr. Mitchell that he believed the allegations and would find a way to end Dr. Mitchell’s career. The 2001 CDR board with RADM Iasiello as president selected two Catholic chaplains above zone who did not have records as strong as Dr. Mitchell’s. Consideration of factors other than the record was improper and forbidden by the Secretary of Navy’s instructions as well as Equal Opportunity regulations and the Equal Protection component of the Fifth Amendment. The Navy’s secret voting process and small boards allow one board member to prevent a candidate’s selection by voting zero with no accountability. Dr. Mitchell believes this process allowed RADM Iasiello to prevent his promotion. Dr. Mitchell retired in 2003, after two FOS to CDR. 40. JAIRO MORENO (Gibson) resides at 2009 Oak Brook Dr., Portland, Texas. He entered the
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Navy Chaplain Corps in 1987 and is endorsed by the Church of God of Cleveland, Tennessee, a Pentecostal Non-liturgical denomination. CH Moreno is Hispanic, and the combination of being Pentecostal and Hispanic resulted in bias and prejudice throughout his career as a chaplain. In Okinawa, he was assigned to work under the supervision of CAPT Rock, a Catholic command chaplain. In CH Rock’s view, CH Moreno should have been Catholic rather than Pentecostal because he was Hispanic. CH Rock subjected CH Moreno to a series of degrading and insulting incidents. CH Rock gave CH Moreno fitness reports that made him non-competitive for CDR. CH Moreno has FOS to CDR numerous times. No Pentecostal chaplain who worked for CAPT Rock has been promoted.
The command chaplain who followed CH Rock was CH Lesak, another Catholic. On arrival, CH Lesak told CH Moreno, “I don’t want anything to do with you because you have been passed over” and treated CH Moreno with disrespect and disdain.
The command chaplain who followed CH Lesak gave CH Moreno increased responsibilities and outstanding fitness reports, although nothing had changed in CH Moreno’s approach to ministry. CH Moreno’s FOS is due in large part to the animosity of his former Catholic command chaplains, who savaged his career with prejudiced fitreps, aggravated by the policy of always having a Catholic on every promotion board until 2003. CH Moreno was considered for promotion to CDR during that time. CH Moreno is one of two plaintiff chaplains with Hispanic ethnicity. Non-liturgical Hispanic chaplains are not promoted while Catholic Hispanic chaplains are. 41. TIMOTHY D. NALL (Adair) is currently a chaplain in the Naval Reserve endorsed by the Baptist Missionary Association of America and lives at 1903 Kimberly Rd., Corinth, MS 38834. He entered active duty as a chaplain in October 1984. Asked to take over a small chapel and
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breath life into it, he increased the congregation from 40 to 150 in 13 months. Despite this and other exemplary work, he received no credit for his accomplishments on his fitness reports. As a result of the Navy’s systematic discrimination, he was forced to leave active duty in September 1988, but has remained in the Navy Reserve. Since 1988, he has served numerous active duty tours; on some he has encountered the same covert Non-liturgical prejudice and bias to which the Navy has turned a blind eye.
He became aware of the evidence exposing the Navy’s faith group quota system and systematic Non-liturgical prejudice only after talking with one of the other Plaintiffs in early 2000 and examining the results of the Stafford and Ellis Reports described infra. 42. DAN NICHOLS (Gibson) resides at 809 Malibu Drive, Columbia, South Carolina. He entered the Navy CHC in April 1982. At that time, he was endorsed by the United Methodist Church (UM), a Liturgical denomination. He was promoted to LCDR in 1986. Although he had been endorsed by the UM, CH Nichols came to believe he should baptize adults rather than infants, a practice which was not incompatible with his endorsing denomination at that time. However, consistent with his changed beliefs, he changed his endorsement from UM to Chaplaincy of Full Gospel Churches (CFGC), an endorsing agency for charismatic Non-liturgical churches and fellowships, just before the FY93 CDR promotion board.
When he was assigned to Whitby Island, Washington, 1991-94, after he changed his endorsement to CFGC, he was visited by RADM Muchow who upbraided CH Nichols because he did not believe in infant baptism. RADM Muchow told CH Nichols he was occupying a billet for baby baptizers, although officially there were no denominationally designated billets. In the immediate area of the base there was no shortage of churches who would baptize infants and CH Nichols arranged for several baptisms under provisions which allow for contract clergy to meet a
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free exercise need when necessary. When RADM Muchow left, CH Dave Young, the Catholic command chaplain, said to CH Nichols, “You’ve blown it now.” When asked what he meant, CH Young said, “You’re on the wrong team,” referring to CH Nichols’ switch from a Liturgical to a Non-liturgical endorser.
After he was non-selected for CDR, a senior Methodist chaplain who had been indirectly asked by the UM endorser to contact CH Nichols, called. The UM senior chaplain said, “You understand what its all about, don’t you? It’s all about accessions. The more evangelicals [i.e., Non-liturgicals] on active duty, the fewer Methodists get on active duty.” This reflects a statement his former UM endorser made concerning the Chief of Chaplain’s concern over the large number of Non-liturgical chaplains.
The Navy’s hostility toward Non-liturgical faith groups and particularly to charismatics deprived CH Nichols of a fair opportunity for promotion. After his FOS, CH Nichols saw the handwriting on the wall; since the Navy had made continuation on active duty unreasonable and created a hostile environment, he retired under TERA when offered the opportunity. CH Nichols heard of the chaplain litigation in 2002. 43. RENE PORTER-STEWART (Gibson) Until she was discharged March 1, 2006, for multiple FOS to LCDR, CH Porter-Stewart was an active duty Navy Chaplain assigned to the Naval Medical Center, San Diego, California. She currently lives at 1061 Agate Street, Unit B, San Diego, California, 92109, but is a legal resident of Florida.
CH Porter-Stewart entered active duty as a Navy chaplain in September 1988, endorsed by the International Church of the Foursquare Gospel, an evangelical, pentecostal, Non-liturgical faith group. CH Porter-Stewart’s career is filled with examples of the Navy’s overt and covert hostility to effective, Non-liturgical chaplains. During Operation Desert Shield and Desert Storm
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(Persian Gulf War), she established an airport ministry for all Marines leaving or coming home at Cherry Point, NC. She also developed and hosted several episodes of a television program for the Cherry Point, NC military community addressing such topics as reunion (when a service person returns after a deployment and combat) and suicide prevention. Despite these highly effective programs, she experienced hostility from her command chaplains who recommended she be given low marks on her fitness report. Her commander disregarded her command chaplain’s recommendations, writing higher and more accurate fitness reports on her.
She was reassigned by her command chaplain from her highly effective ministry in the Headquarters Squadron, placed in a closet for an office and given a job with no job description, no budget, and no religious program support personnel. Several months later, after she defined her duties and began building an effective ministry, as a LT she was placed in a CDR’s position with no overlap or support where she was subjected to hostility, inappropriate language and harassment from the senior Second Marine Air Wing Chaplain.
In 1995-1997, she was assigned to Balboa Naval Hospital, aka the Naval Medical Center, San Diego, CA, and again faced great harassment and a hostile work environment. CH PorterStewart, another female (LT) chaplain, two male chaplains and the Command Chaplain’s civilian secretary filed complaints against the senior Chaplain, CH CAPT Dave Young. The Board of Corrections removed CH Young’s fitness reports on CH Porter-Stewart, but did not grant her a special board. The Navy then placed CH Young on CH Porter-Stewart’s LCDR Chaplain Selection Board, which failed to select her. No active duty Non-liturgical chaplain who worked under CH Young has been promoted. CH Young rated his Catholic chaplains above Protestant chaplains, both Liturgical and Non-liturgical, not on the basis of performance but because they were Catholic.
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44. JAMES V. PRINCE (Gibson) lives at 3710 Cain Ct., Wilmington, Delaware, 28409. He first entered active duty in the Navy as an enlisted man in November 1970. He left the Navy in 1974 to pursue a seminary degree. He was commissioned as an Ensign in the Theological Student Program in 1975 and returned to active duty as a chaplain 1980. He is endorsed by the Southern Baptist Convention, a Non-liturgical faith group. His superiors consistently rated CH Prince as outstanding, placing him in the top 1% and “early promote” rating categories. The Navy promoted him to CAPT in 1993 but then selected him for involuntary retirement in 1997 (FY98) with less than four years time in grade as a CAPT.
Before accepting an assignment to Washington, D.C., CH Prince asked the then Deputy Chief, RADM Black, if he should wait to move his family until after the SERB results were announced. RADM Black, who was the SERB president, assured him he had nothing to fear. CH Prince relocated his family, resulting in a large financial loss due to the expenses associated with sequential, necessary short term relocations once the SERB was announced.
Of the five chaplains selected by the FY98 SERB, four were Non-liturgicals. The fifth CAPT chaplain was Catholic CH John Madden, whose vendetta and prejudicial comments against CH (LCDR) Aufderheide had resulted in CH Aufderheide’s non-selection to CDR and precipitated the DODIG investigation into the FY97 and 98 Chaplain CDR promotion boards.
CH Prince was selected for retirement on the basis of his faith group and because his excellent record which made him a threat to the Liturgical domination of the CHC leadership. Many other chaplains with far inferior records were protected and allowed to remain on active duty, in violation of the Navy’s own precepts, the Constitution and RFRA. 45. DUANE PURSER (CFGC) was an active duty Navy chaplain at the rank of LCDR when
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CFGC was filed. He currently resides at 29. He was endorsed by CFGC, commissioned as a Navy chaplain in July 1985, and promoted to LCDR in July 1993. His career includes the types of tours that the CHC has stated are necessary to be competitive for promotion, e.g., Marines, training base and ships. Moreover, his career includes several unique assignments that should have assisted or led to his selection for Commander, specifically a tour on an Anti Air War picket, one of the most forward deployed ships, during the Gulf War, and service in the Mogadishu, Somalia, humanitarian relief exercise, for which he received outstanding fitness reports.
The Navy selected him for post graduate school, which he completed successfully. The Secretary of the Navy has instructed promotion boards to consider civil schooling as a “plus” in selecting officers for promotion, especially given the considerable investment of Navy funds such schooling represents. Despite this instruction and his outstanding record, LCDR Purser was nonselected for promotion to the rank of Commander in FY 2000 and FY 2001.
The Navy’s chaplain promotion process dominated by liturgical chaplains identified each chaplain’s faith group to the promotion boards. This allowed individual board members to secretly exercise their religious bias, preventing LCDR Purser’s promotion to Commander. The FY 2001 chaplain Commander promotion board had no Non-liturgical chaplains as board members. His FOS is typical of the Navy’s prejudice against Non-liturgical chaplains in general and charismatic chaplains in particular. CH Purser was forced retire when he reached 20 years of service due to his FOS to Commander.
CH Purser’s injuries include being denied a fair opportunity to compete for a full career and promotions in the Navy, denial of promotion to Commander in the Navy and the opportunity to compete for other promotions. The CHC placed CH Purser under abusive and hostile chaplain
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supervisors who inflicted great stress and strain on CH Purser and his family. 46. RAFAEL J. QUILES (Adair) Rafael J. Quiles resides at 203 Orchard Grove Place, Oldsmar, FL 34677. CH Quiles had prior enlisted service in 1970-1972 and 1973-1977. He reentered the Navy as a chaplain in January 1984. He is endorsed by the Church of God, Cleveland, TN, a Pentecostal denomination, and reached the rank of LCDR. CH Quiles’ career and his exemplary record should have qualified him for promotion to Commander. He was non-selected for promotion to Commander by the FY 1997 and 1998 chaplain promotion boards. The evidence from the Navy and DOD Inspector General investigations clearly shows that 1) faith group played a determining part in the selection of chaplains for promotion during those boards, and 2) chaplains with records inferior to CH Quiles were selected for promotion while he was not. The reason he was not promoted was because he was a Non-liturgical and a member of a disfavored faith group, whereas those with inferior records who were promoted were from favored liturgical faith groups. After his non-selection, CH Quiles was told to leave the Navy. His retirement in December 1998 following his second FOS was a constructive discharge. At first CH Quiles thought his non-selection was “the luck of the draw.” Through one of the co-Plaintiffs, he learned of the Stafford Report described in ¶ 52 infra, and by comparing his record objectively with those who had been promoted, he discovered the cause of his injury and the injustice done to him. 47. JAVIER ROMAN (Gibson) lives at 701 Creek Water Terrace, Apt 209, Lake Merry, Florida, 32746. He entered the Navy as a chaplain June 6, 1966, as a LTJG endorsed by the Chaplaincy of Full Gospel Churches, a non-denominational charismatic endorsing agency. He was promoted to LT a year later. On March 3, 2005, he was separated for twice FOS to LCDR.
His initial assignment was to Twenty-nine Palms, where he served as a base and battalion chaplain. In 2002, CH Roman was assigned to the aircraft carrier KITTY HAWK, based in
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Yakuska, Japan. He was involved in Operation Enduring Freedom with the carrier. When the command chaplain learned CH Roman was endorsed by CFGC, he said to CH
Roman, “Oh, you’re one of those troublemakers,” referring to the fact that CFGC had sued the Navy over religious discrimination.
While on the KITTY HAWK, CH Roman filed an official complaint because a Catholic priest allowed to remain on active duty despite numerous FOS was selected for promotion to LCDR.
CH Roman had to fill in as the command chaplain several times during his tenure on the KITTY HAWK. Despite his demonstrated ability to fulfill this role and his outstanding fitness reports from his previous assignments, he was not selected for promotion to LCDR. His CAPT said he did not understand why CH Roman was not promoted. CH Roman believes his FOS was due to his challenging the preference given to FOS Catholics in retentions and promotions, the animosity of the CHC leadership against his endorsing agency, CFGC, and the ability of one board member to ruin a chaplain’s career with no accountability. 48. DANIEL ROYSDEN (CFGC) was an active duty Navy Chaplain. He entered the Navy Chaplain Corps’ Theological Student Program in 1981, was commissioned as a Navy chaplain in the Naval Reserve endorsed by the United Methodist Church from 1984 to 1987, and entered active duty in October 1987. In June 1987, he changed his endorsement from United Methodist to CFGC. Just before leaving Japan for his first sea tour, the Pacific Fleet Chaplain visited his ship and informed its captain that CH Roysden belonged to an unknown faith group and the Fleet Chaplain expected that CH Roysden would have to be replaced in a few months. CH Roysden was told by other Navy chaplains that he had made a mistake changing his endorsement from Methodist to CFGC and that it would hurt his career if he did not get out of “that group.” Later at
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Pearl Harbor, commenting on those who attended a full gospel service on the base, his senior chaplain told him that, “People who believe like that have no place worshiping on base and chaplains from those groups shouldn’t even be in the Navy.” Senior liturgical chaplains have placed junior liturgical chaplains in jobs to which LCDR Roysden should have been assigned, have awarded higher ratings to less qualified liturgical chaplains and disregarded or frustrated the efforts of other commanders or responsible staff personnel to provide recognition for CH Roysden’s outstanding service in very difficult situations to which he was assigned, such as the Korean Air passenger plane crash on Guam.
In investigating CH Roysden’s allegation of retaliation by his senior Catholic chaplain at San Diego, the Navy failed to interview his corroborating eye witness, allegedly on orders from someone responsible for supervision of the investigation. The history of the Navy’s and CHC’s hostility and prejudice against CH Roysden is indicative of their religious and denominational bias against CFGC beliefs and charismatic worship practices. As a result of such prejudice, CH Roysden was twice FOS for Commander, requiring his statutory separation when he reached twenty years time in service. Living in San Diego, CA when the suit was filed, he now resides at 4503 Mount Bachelor Dr., Sparks, NV 89436-4699.
CH Roysden’s injuries include being denied a fair opportunity to compete for a full career and promotions in the Navy, denial of promotion to Commander in the Navy and the opportunity to compete for other promotions. The CHC placed CH Roysden under abusive and hostile chaplain supervisors who inflicted great stress and strain on CH Roysden and his family. 49. THOMAS RUSH (Adair) lives at 302 Edgewood Drive, Ft. Meade, FL 33841. He entered the Navy as a Surface Weapons line officer in 1977. In 1982 he left to attend seminary. He was commissioned as a Reserve chaplain in 1986 and came on active duty as a Navy chaplain in
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January 1990. Despite outstanding fitness reports, he was not selected for promotion because the Navy discriminated against his Non-liturgical status by turning his prior Navy excellent line service into a promotion liability. The Navy counted his prior line officer service to place him before the chaplain promotion board, then disregarded his fitness reports as a line officer, considering only the few that he had as an active duty chaplain. Because the other chaplains being considered had more reports as chaplains, he was non-competitive for promotion. When he asked why he was not selected for promotion to Lieutenant Commander (hereafter “LCDR”) in 1993, the senior Navy Chaplain “detailer” told CH Rush that he did not have enough “sea time”, an obvious fabrication considering CH Rush’s extensive time at sea.
Knowing that subsequent selection for promotion was an impossibility for a Non-liturgical who had been previously non-selected, he applied for and was approved for the Voluntary Separation Incentive Program. Asked by the Navy to remain on active duty for a short period of time to meet the Navy’s temporary need for chaplains, he agreed and remained in the Navy until August 31, 1994. Despite the Navy’s promise that his extension would not result in his second consideration for active duty promotion (adversely affecting his chance for promotion in the Reserve), the Navy considered and non-selected him a second time in 1994.
Forced to leave active duty by the Navy’s systematic denominational bias in promotions, he returned to the Navy Reserve. In the context of its inter-related promotion and separation systems, i.e., up or out, the Navy’s actions were in effect a constructive discharge based on religious prejudice. But for this hostility, CH Rush would have successfully continued his Navy career as evidenced by his outstanding record. In 1996 he applied for and was accepted by the U.S. Air Force Reserve. There he was promoted to Major, largely on the strength of his Navy fitness reports and subsequently to Lieutenant Colonel. He is endorsed by the Southern Baptist
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Convention. The treatment of CH Rush is an example of a systematic policy and pattern of special
prejudice against Non-liturgical chaplains with prior military service. The motivation behind this prejudice is the Liturgical hierarchy’s fear that a Non-liturgical chaplain’s prior military service gives him a competitive edge over Liturgical chaplains. Prior service gives a chaplain a better understanding of how the Navy works and can provide instant rapport with sailors and marines, resulting in more effective ministry. This could result in better fitness reports. In an equitable promotion system, some of these prior service chaplains would rise to the top of the CHC, posing a threat to Liturgical domination and control. 50. LLOYD SCOTT (Gibson) lives at 14 Heath Spur, Ledyard, Connecticut. He entered the CHC with over 2½ years active and reserve prior service as a naval aviator. He was endorsed by Evangelical Free Church of America (EFCA), commissioned in the CHC in July 1976, came on active duty in March 1979 and was promoted to LCDR in 1982.
Despite his outstanding record, CH Scott FOS to CDR. Having served with several Liturgical chaplains who were later promoted, he could compare his performance and record with theirs and know his record was superior. His failure to select for Commandeer was the result of stacking promotion boards with Liturgical chaplains who tended to select those like themselves. This denied him the equal opportunity to compete for promotion based on record of performance. He was forced to prematurely retire from the U.S. Navy in 1994 while Liturgical chaplains with records inferior to his were promoted and allowed to continue.
During Desert Storm, he was assigned to the 1st Marine Expeditionary Force, filling two CDR positions at the same time. Shortly before he was due to leave the war zone, the liberal command chaplain, CAPT Hiers, overheard LCDR Scott talking to his wife on the phone and telling her
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“my ministry here has been fantastic, but has been truncated by demonic forces personified by chaplains.” CAPT Hiers requested, and the Chief of Staff agreed, to order CH Scott evaluated for fitness for duty because of his comments regarding demonic forces, recognized by CH Scott’s faith tradition. Although the subsequent psychiatric evaluation rebutted the allegation of unfitness for duty for psychological problems, rumors were spread concerning CH Scott’s stability and performance in Saudi Arabia. These reports resulted in changes in his duty station which placed him in non-competitive billets.
CH Scott subsequently filed an Article 138 challenging the authority and propriety of ordering an EFCA ordained pastor to have a psychiatric evaluation; the phenomenon of demons is recognized by the EFCA. The Article 138, ignoring the Free Exercise and Establishment Clause issues, sustained CH Hiers’ authority. The incident arising from the telephone conversation is illustrative of other conflicts between CAPT Hiers and CH Scott stemming from differences in their theological perspectives and CAPT Hiers’ failure to recognize the legitimacy of theologies other than his own. 51. MARY HELEN SPALDING (CFGC) enlisted in the Navy in September 1983, attended and graduated from officer’s candidate school in 1986, and transferred into the Navy’s Chaplain Corps in August 1990. After service in the Gulf War, Marine Corps Recruit Depot at Parris Island and on the aircraft carrier USS Forrestal (where she was hand picked as the first woman chaplain to serve on an aircraft carrier), she was named Navy Chaplain of the Year in 1995 while at Naval Air Station Key West, FL. The Navy then assigned as her command chaplain supervisor a Protestant Liturgical chaplain who had previously demonstrated his inability to get along with female chaplains and other faith groups. Upon his arrival at Key West, he told CH Spalding he could not work with her because she was a woman.
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Rather than deal with the Protestant Liturgical command chaplain who created the problem, the Navy then reassigned her in a prejudicial manner that ensured she would not be competitive for selection to Commander. Transferred to the 2d Marine Division, as a LCDR she was initially given a supervisory position normally assigned to a Commander until the new Division chaplain took over her responsibility. Faced with the prospect of being separated after FOS because of the damaging impact on her career due to her Key West and subsequent experience and assignments, she retired at 15 years under the Temporary Early Retirement Act (“TERA”) in October 1998. The Navy’s overt and official hostility to her as a CFGC chaplain resulted in her being uncompetitive for promotion, amounting to a constructive discharge. Had it not been for this prejudice, CH Spalding would have been promoted and finished her career as a Navy chaplain. She lived in Edinburg, TX, at the time the suit was filed, but now resides at 610 Walk the Plank, La Jolla, TX 78560.
CH Spalding’s injuries include being denied a fair opportunity to compete for a full career and promotions in the Navy, denial of promotion to Commander in the Navy and the opportunity to compete for other promotions. The CHC placed CH Spalding under abusive and hostile chaplain supervisors who inflicted great stress and strain on CH Spalding. 52. GARY STEWART (Gibson) currently resides at 220 Walking Trail Dr., Concord, Virginia. He was an active duty Navy chaplain endorsed by the Bible Churches Chaplaincy when this suit was filed. He was commissioned as a chaplain March 19, 1985, entered active duty in April 1988 and was promoted to LCDR in 1995. Because of his Non-liturgical faith group’s tradition and beliefs, CH Stewart has been the object of religious prejudice and bias throughout his career.
In 1996, CH Stewart shared confidential matters regarding the command to which he was assigned with CH (CAPT) Blancett. CH Blancett came to CH Stewart’s home in Oregon to
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confront him, telling him the CHC motto, “Cooperation without Compromise” was unrealistic. In front of CH Stewart and his wife, CH Blancett told him to compromise or suffer the consequences, i.e., if you don’t compromise by divulging protected communications, you’ll never make it in the organization. CH Blancett followed through with his threat, giving CH Stewart a poor fitness report.
While at Great Lakes Naval Training Center, LCDR Stewart was put in charge of the Forrestal Village chapel which grew from 60 congregants to approximately 180. He learned from his sexton that CH (CAPT) Cooper, the Protestant Liturgical command chaplain, thought CH Stewart was “not liturgical enough,” despite the fact that CH Stewart is a Non-liturgical chaplain. 10 U.S.C. § 6031 authorizes any chaplain to conduct worship according to the forms and ordinances of his faith group, and he was meeting the free exercise needs of Forrestal Village personnel, as shown by the increase in the congregation.
Despite the availability of a Non-liturgical chaplain to replace him when he left Great Lakes, CH Cooper put a Protestant Liturgical in charge of the Forrestal Village chapel, resulting in the congregation once again shrinking because their Non-liturgical worship needs were not being met.
At Great Lakes, CH Stewart was also reprimanded for praying “in Jesus’ name.” When he then concluded a prayer with “I pray in the name of my Lord and my Savior,” as was his right under the Constitution and the Navy’s own regulations, he was relieved from his duties. After he reported this to his endorser, the command lawyer concluded CH Stewart had disobeyed the order not to close his prayers with a reference to Jesus Christ, whom CH Stewart and his faith group believe is the Son of God, Savior of the World, and the only scriptural authority to ask God for blessing and protection.
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The reason for actions taken against CH Stewart is the Navy’s culture of religious prejudice against Non-liturgical chaplains and faith groups which has resulted in LCDR Stewart’s nonselection for promotion.
Congressmen Walter Jones (NC) invited CH Stewart to a meeting chaired by Senator Lindsey Graham (SC) on 6/6/06 to address issues arising from the House of Representative’s language in the Defense Appropriations Bill allowing chaplains to pray according to their conscience. The meeting included members of the Armed Services, DOD and former Navy Chief, RADM Black. RADM Black said he was not aware of any chaplain being threatened or punished for praying a sectarian prayer when he was Chief. CH Stewart reminded RADM Black that (i) his endorser had written RADM Black complaining that CH Stewart had been criticized for praying according to his denominational beliefs and his career threatened by CH Burt, the current Chief, but then one of CH Stewart’s command chaplains at Great Lakes; and (ii) RADM Black had replied to the endorser’s letter. RADM Burt was at the 6/6/06 meeting. The Navy investigated CH Stewart and reassigned him on short notice in retaliation for his participation in Sen. Graham’s meeting, causing CH Stewart and his family financial loss and great stress.
The Navy said CH Stewart was moved to Bethesda Naval Medical Center for “mentoring” which never occurred. His Bethesda command chaplain was reassigned because of inefficiency shortly after CH Stewart arrived and he became the deputy command chaplain prior to his statutory retirement in 2007. The CHC sought other opportunities to retaliate against CH Stewart, such as falsely accusing him of participating in a radio interview while on duty, a fact which could have easily been checked and found to be false. The Navy’s acts of retaliation and prejudice placed great stress on CH Stewart and his family. 53. LYLE SWANSON (Adair) resides at 7052 Bennington Drive, Gurnee, Illinois 60031. CH
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Swanson was commissioned as a Navy Chaplain in June 1982. He is endorsed by the Christian Churches and Churches of Christ, a Non-liturgical faith group. Despite outstanding fitness reports, including two years (1992-93) as the command chaplain in Bahrain during the Gulf War and the subsequent period of semi-hostility, and selection for post-graduate school, he was nonselected for Commander in 1994 and 1995. He was offered and accepted the opportunity to qualify for TERA. With no other viable options, he retired under TERA in August 1997; the Navy’s actions and prejudice constitute a constructive discharge.
The basis for his non-selection to Commander, forcing his subsequent early retirement, was the fact that he was a Non-liturgical chaplain. In early 2000 while talking with an active duty chaplain friend, CH Swanson became aware of the evidence revealed in the Stafford Report, ¶ 52 infra, the Navy’s faith group quota system, the consistent promotion of chaplains with records inferior to his, the use of religious criteria in Navy chaplain promotions, and other information concerning the allegations of this lawsuit. 54. FRED A. THOMPSON JR. (Gibson) resides at 2853 South Nephrite Way, Meridian, Idaho. He began his naval service in 1978 when he enlisted in the Naval Reserve while he was in seminary. Upon graduation from seminary, he was endorsed by the Assemblies of God, a Pentecostal Non-liturgical denomination, and commissioned in the CHC in September 1980. He was promoted to LCDR in August 1986 and in 1987, was assigned as the senior chaplain on the battleship USS IOWA, normally a CDR’s billet. Prior to that assignment, he had outstanding fitness reports and tours of duty; it is unlikely he would have been selected as the senior chaplain of the USS IOWA without an outstanding record.
Shortly after his assignment to the USS IOWA, a Catholic priest, LCDR James Danner, who was junior to LCDR Thompson, was also assigned to the IOWA. The ship’s CAPT and the XO
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were both Catholics; their friendship with LCDR Danner caused tension within the ship when LCDR Danner refused to cooperate with LCDR Thompson, who was the command chaplain. CH Thompson was subjected to a series of humiliating and embarrassing situations in which the ship’s senior leadership demeaned him. Because CH Thompson discussed some problems on the battleship with his senior chaplains in an attempt to obtain advice as how to best handle the situation with CH Danner and the Catholic command, he was later reprimanded by his commanding officer, who subsequently made both CHs Danner and Thompson co-equal command chaplains, a very unusual situation and contrary to Navy regulations and protocol.
An explosion in Turret 2 of the IOWA killed 46 sailors, an event which made national news. When the ship reached Norfolk, CH Danner left the ship, leaving CH Thompson to address the issues that arose from the mass casualties and ministry to dependents of sailors killed in the explosion. Later, CH Danner was reassigned early at the request of the command due to his unwillingness to follow directions from the ship’s leadership.
After the results of the official investigation of the explosion in Turret 2 were challenged by several dead sailors’ dependents, CH Danner wrote a very insulting and critical letter to survivors and family members who questioned the investigation’s results, which were later found to be flawed. The resulting outcry embarrassed the Navy. According to the Washington Times, CH Danner received a letter of reprimand from the Chief of Naval Personnel. While this would normally kill a naval officer’s career, CH Danner was promoted to CDR and subsequently to CAPT. In contrast, CH Thompson was FOS to CDR and forced to leave the service in January 1993. He was subsequently promoted to CDR in the Reserves in 1995 and retired from the Reserves.
The fact that CH Danner, despite reportedly receiving an official letter of reprimand, was
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promoted while CH Thompson was discharged strongly suggests favoritism for Catholics and the prejudice against Non-liturgicals. CH Thompson learned of the chaplain lawsuits in 2002. 55. GLENN THYRION (Gibson) lives at 102 Burke, Crane, Texas 79731. He entered active duty in October 1990, endorsed by the Church of the Nazarene, an evangelical Non-liturgical faith group. His first assignment after the Chaplain School Basic Course was to the USS HALEAKALA, a ship with a history of serious morale, moral and leadership challenges. Before leaving the Chaplain School, its director, CH Fitzgerald, told CH Thyrion if he had not shown he was a quality chaplain, he would not have been assigned to the ship because of its history of serious problems. On the HALEAKALA, CH Thyrion was initially put in charge of the evangelical worship service. When a new command chaplain was assigned, he removed CH Thyrion from the evangelical, Non-liturgical service, giving that responsibility to a Protestant Liturgical chaplain, and gave CH Thyrion the responsibility to run a liturgical General Protestant service. The new liturgical “pastor” of the evangelical service succeeded in driving the congregation away from the service by espousing liberal, non-biblical theological positions to the conservative and Bible centered congregation who voted with their feet.
After his reassignment to the Liturgical service, the command chaplain criticized CH Thyrion’s preaching and gave him orders as to how he should preach. When CH Thyrion challenged the legality of such order as contrary to 10 U.S. C. § 6031, the command chaplain told him he would approve his sermons on a case-by-case basis. This is contrary to statute and the Constitution. See Rigdon v. Perry, 962 F. Supp. 150, 162 (D.D.C. 1997) (government officials may not dictate or interfere with a chaplain’s sermons).
The Navy selected CH Thyrion for the clinical pastoral education program, a specialized postgraduate course in hospital related skills and competencies. Following completion of the
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course, the CHC assigned CH Thyrion to Bethesda Naval Hospital where his supervisor/command chaplain was CH Joan Vieira, a female, Liturgical Protestant. She did not like Non-liturgical male chaplains and fought every attempt by CH Thyrion to minister to the sailors, marines and families assigned to the Hospital. Liturgical CH Vieira criticized CH Thyrion because he was “too Christological,” i.e., too centered on Christ, and preached too long. She undercut his stature and status within the chapel community through such things as telling jokes to the congregation about an “incompetent male preacher” just before he was to preach. As justification for giving him low fitness reports, CH Vieira told CH Thyrion “you’re talented and could make much more money as a civilian.”
The Navy’s systematic religious hostility resulted in his FOS to LCDR in 1999 and 2000 despite his excellent record prior to CH Vieira and his selection to postgraduate school. CH Vieira’s overt hostility to CH Thyrion is typical of the culture of prejudice the Navy and its CHC leadership has cultivated and encouraged against evangelical Non-liturgical chaplains in violation of the Constitution and RFRA. 54. ARMANDO TORRALVA (Gibson) was an active duty Navy chaplain at the grade of LCDR assigned to Corpus Christi, Texas when this case was filed; he resides at 6637 LaBianca Dr., Corpus Christi, Texas. CH Torralva began his military career as a Chaplain Candidate endorsed by the Associated Gospel Churches, and was commissioned a 2LT in the USAF Reserve in August 1981. He was commissioned in the Air Force Chaplain Service, remained in the Air Force Reserve from 1984 to 1988, and was promoted to CAPT (O-3). He then entered the Navy as a chaplain in July 1988.
Among his various assignments, during the presidency of George Bush, Sr. CH Torralva was chaplain for the Marine 1 Squadron which flies the presidential helicopters. In 1997 CH Torralva
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was selected for postgraduate school and attended Princeton Theological Seminary. Although the normal chaplain postgraduate education program does not have sufficient hours to qualify for a degree, CH Torralva took extra hours and earned a Master of Theology. Despite the fact the Secretary’s instructions require boards to look at postgraduate experience in a positive light, and the fact he was selected for postgraduate school based on the strength of his record, CH Torralva was not selected by the FY99 CDR Board. He was scheduled to fill a CDR’s billet at COMFAIRMED Headquarters in Naples, Italy. Although he reminded the detailer that he had been FOS, the detailer reviewed his records and indicated to CH Torralva he had a competitive record and would probably be picked up by the next board.
Reporting to COMFAIRMED in August 1999, CH Torralva discovered his billet was unfunded, meaning that there was no funding supporting it and the billet had been withdrawn from the Headquarters. Nonetheless, he was assigned as a force chaplain, which would normally have meant exercising supervisory responsibilities over subordinate chaplains as a member of the Admiral’s staff. CH Torralva, in his role as force chaplain, did an inspection of a chapel program at Rota, Spain. The command chaplain was Catholic CAPT McLaughlin. CH Torralva found minor improprieties and problems, including numerous complaints against the junior Roman Catholic chaplain from his parishioners and staff who complained he was not doing his job. CH Torralva also found minor discrepancies in the Religious Offering Fund. The command was embarrassed, particularly since their difficulties were pointed out by a Protestant Hispanic.
CH Torralva’s senior chaplain, CH (CAPT) Gentolli at CINCUSNAVEUR, the command chaplain of Naval Forces in Europe, directed CH Torralva to evaluate the problems at the Naval Support Activity at Naples. CH Torralva found the Religious Ministries Department under the Roman Catholic CH Ronald Buchmiller was divided, demoralized and dysfunctional due to CH
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Buchmiller’s lack of leadership and hostility toward Protestant evangelicals. CH Torralva recommended in a white paper to CH Gentolli that they initiate team building exercises to help remedy the problem. He was criticized for his inspection and recommendation by both CH Buchmiller and the NSA Commander, CAPT Gray, who blamed the problems on a previous chaplain, Phil Veitch, who allegedly stirred up division and dissension. However, CH Veitch had been gone for some time and an objective evaluation showed the real problem was CH Buchmiller’s anti-evangelical attitudes and prejudice. The Navy then transferred CH Torralva from COMFAIRMED to NSA Naples, working under CH Buchmiller, the same command chaplain he had just criticized.
While at COMFAIRMED, CH Torralva assumed the pastorship of a evangelical congregation of American military personnel assigned to NATO Headquarters at Armed Forces South (AFSOUTH). When he was reassigned to NSA Naples, CH Torralva retained his position as the chaplain/pastor for that congregation. When the new command chaplain, CH (CAPT) Steve Rock, another Catholic, reported in, his first words to CH Torralva were he wanted the AFSOUTH congregation disbanded. CH Torralva communicated that to AFSOUTH personnel who pointed out under Title 10 and the Memorandum of Support among the Armed Forces the Navy had to provide support for the religious needs of AFSOUTH and therefore CH Rock could not shut down the evangelical congregation. This became a continuing bone of contention between Catholic CH Rock, who wanted to eliminate the evangelical congregation, and CH Torralva, their pastor. CH Torralva was supposed to be the deputy command chaplain because of his seniority as a LCDR, but CH Rock refused to allow CH Torralva to function as such. CH Rock made, and permitted others to make, openly disparaging anti-Hispanic comments about CH Torralva.
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When the base commander, CAPT Gray, planned to initiate a “teen clinic” which would dispense birth control and provide sexual disease treatment to teenagers without parental consent, CAPT Gray directed the chaplains to help sell the program to the community. CH Torralva preached a sermon on parental responsibility, including their obligation to instruct their children in sexual matters, and mentioned the opening of the Teen Clinic without either criticizing or preaching against it. It caused a firestorm in his congregation, which included high ranking Army and Navy officers, and embarrassed CAPT Gray. He accused CH Torralva of violating an order not to discuss the Teen Clinic until such time as the command was ready to announce it to the community. CAPT Gray and CH Rock retaliated against CH Torralva on his fitness reports. A subsequent Article 138 investigation initiated by CH Torralva exonerated CAPT Gray. However, the investigation highlighted the dysfunctional and divisive Chaplain Department under CH Rock. Nonetheless, nothing was done.
Although the Navy pays lip service to Equal Opportunity, the promotion rate of Hispanic Protestants is clearly below that of Hispanic Catholics. It is believed this is due to a perception among many Catholic board members that Hispanic personnel should be Catholic, not Protestant or evangelical, a perception flowing from comments made to several Hispanic non-Catholic chaplains, including CH Torralva. The fact that CH Torralva could be selected to be the chaplain for Marine 1 Squadron, postgraduate school, as well as sent to occupy a CDR’s billet while still a LCDR is clearly inconsistent with his FOS. The only explanation is something other than his record was before the board. The Navy system of secret votes and small numbers of board members gives unbridled discretion to denominational representatives who have historic animosities with other denominations. 57. THOMAS DANIEL TOSTENSON (Gibson) resides at 1822 West Brookwood Court,
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Phoenix, Arizona. He was commissioned a Navy chaplain in 1988; he is endorsed by the Evangelical Free Church, a Non-liturgical denomination. He served in Desert Storm with the 8th Tank Battalion of the 2nd Marine Division, the highest decorated Marine Unit in that war. He was only the second chaplain LT in the history of the CHC to graduate from the Naval War College.
He was subsequently assigned to Patuxtant Naval Air Station. The command chaplain at that time was CDR Carl Drake, a Roman Catholic who had adopted a teenager as his son. As a result of a child molestation charge filed by his adopted son, CDR Drake was forbidden to have contact with the boy. CH Tostenson saw CDR Drake with the boy and reported it to the social worker. CDR Drake was subsequently court-martialed for violating the court order. Although sentenced to 4 years in prison, CDR Drake only served 9 months and was allowed to retire with full retirement pay. CH Tostenson subsequently FOS to CDR despite an outstanding record. Rev. Tostenson believes his FOS was retaliation by the Catholic chaplain network through the Catholic board member for reporting CDR Drake. 58. JAMES TWAMLEY (Gibson) resides at 6423 Verde Vista Court, Klammath Falls, Oregon. He began his military career in the U.S. Army as an enlisted man, on active duty from January 73 to June 1976. Attending college after his service, he remained in the Army Reserve for several years, joined the Air Force ROTC, was commissioned as a Navigator in 1981 and rose to the rank of CAPT (O-3) before he left the Air Force in August 1987 to become a Navy chaplain. Having competed his necessary religious education and pastoral experience while in the Air Force, he was endorsed by the Assemblies of God, a Pentecostal, Non-liturgical denomination, and was commissioned a Navy chaplain at the rank of LT in September 1987.
His prior military experience as an Army enlisted man and Air Force Officer provided CH Twamley an excellent backdrop for his military ministry and accordingly he received stellar
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fitness reports. He was promoted to LCDR in October 1992 In his spare time, he also managed to obtain a law degree.
CH Twamley’s last assignment before he was forced to retire for FOS was a chaplain recruiter in Arizona in 1998-99. He remembers Mrs. Berto in the Chief of Chaplains Office gave him his recruiting goals. He was told to emphasize the recruiting of Catholics, then Liturgicals and discouraged from recruiting Non-liturgicals. Once he reached his Non-liturgical goal he had to sit on the paperwork of other interested Non-liturgical candidates. CH Twamley achieved his recruiting goals, while others did not.
Despite his stellar record, he was not selected for promotion by the FY99 and 00 CDR boards and forced to retire on January 1, 2000 with 22½ years time in service. At least one of the board members had a reputation of hostility toward pentecostal chaplains; only one of five pentecostal chaplain candidates was selected in FY99 and he was a minority. CH Twamley had only one B in his fitreps as a LTJG whereas the investigation into the FY 97 and 98 CDR boards showed Catholics and Liturgical selectees with many Bs and Cs. The CHC’s system of secret voting with no accountability subjected CH Twamley to denominational bias, denying him the opportunity to be fairly considered for promotion on his record. 59. THOMAS R. WATSON (Gibson) resides at 2804 Spoons Chapel Road, Ashboro, North Carolina. He began his military career in 1974 on graduation from the United States Naval Academy. Commissioned as a Second Lieutenant in the USMC, he was promoted to the grade of CAPT (O-3), left active duty and transferred to the Reserves while he attended Southeastern Seminary. He enrolled in the Theological Student Program where he gave up his Marine Corps commission and rank and was re-commissioned as an Ensign (O-1) in the Naval Reserve. He entered active duty in 1984, endorsed by the Southern Baptist Convention. After tours of duty in
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Okinawa with the Coast Guard and on the USS YELLOWSTONE, he was FOS to LCDR. During his service as a chaplain, he twice replaced Liturgical chaplains whom he was told had left their commands with bad fitness reports, while he received excellent fitness reports. Those chaplains were subsequently promoted while he was not.
During his time on the USS YELLOWSTONE, a Catholic chaplain on the 6th Fleet staff became angry with LT Watson because an invitation to visit the ship was given to a high ranking Catholic Cardinal in Rome when the ship visited Naples, Italy by an RP who knew the Cardinal. The 6th Fleet Catholic chaplain thought he should have issued the invitation. Given LT Watson’s prior military service and his excellent record, he believes his FOS to LCDR was due to (a) being blackballed by the Catholic chaplain network (Catholic chaplains met regularly and networked among themselves and were given a reserved seat on every chaplain promotion board from 1977 through 2002); and (b) the CHC’s hostility to Non-liturgical prior service chaplains.
Prior to his discharge for FOS, LT Watson was being treated for a medical condition requiring surgery. He was supposed to receive a Physical Evaluation Board (PEB) after surgery to determine his medical fitness for continued service, which can result in a pension if found medically unfit for active duty as a result of a service connected medical condition. He was improperly discharged in 1993 before the PEB was complete. After Congressional intervention, he was reinstated to active duty in 1995 to complete the PEB process. His reinstatement allowed him to gain the necessary time in service (prior service plus active duty as a chaplain) to qualify for TERA and he retired in 1995 with a 30% disability. Prior to hearing about the litigation in 2002, CH Watson had no knowledge of the evidence showing religious bias and had no indication as to why he was FOS to LCDR. 60. JAMES M. WEIBLING (Adair) resides at 12425 Sunbrook, Brookside, TX 77581. He
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entered Navy Officer Candidate School in March of 1980, graduated in July 1980 and was commissioned as an Ensign line officer. In 1985 he left active duty to attend seminary and remained a drilling reservist. In August 1988, he resigned as a Navy line officer in exchange for a commission as a chaplain and began his active duty in September 1989. Despite his outstanding career as a line officer, the Navy CHC considered such service a liability; because of its religious animosity against Non-liturgical chaplains, particularly those who had prior line service, twice failed to select CH Weibling for LCDR. He was released from active duty in February 1994.
CH Weibling’s attempts to understand why he was not selected for promotion were met with lies, misrepresentation and obfuscation on the part of senior Navy chaplains, e.g., all chaplains have outstanding fitness reports, need more sea time. The Chief of Chaplains denied the possibility of faith group bias or improper board member influence when CH Weibling raised these issues with him. CH Weibling’s every effort to verify whether such prejudice and impropriety existed was met with denial and deceit by senior Chaplains. He became aware of evidence of this prejudice only in late 1999 when recalled to active duty for a short time in Naples, Italy, where he learned of the Stafford Report and its implications. A lawyer specializing in military claims that he consulted in early 2000 after his return from active duty told him he had to have “hard” evidence before filing suit. CH Weibling’s efforts to obtain that evidence in a timely manner were met with more Navy obfuscation and delay.
But for the Navy’s religious prejudice and denominational quotas challenged here that led to his separation, CH Weibling would have been promoted and continued his active duty career. The Navy’s deliberate deceit and fraudulent concealment precluded his ability to bring his claim sooner.30 CH Weibling was retired in the Naval Reserve as a LCDR after reaching statutory
30 “Read into every federal statute of limitations *** is the equitable doctrine that in the case of defendant’s fraud or deliberate concealment of material facts relating to his wrongdoing, time does not
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limits. 61. DAVID S. WILDER (Adair) resides at 141 Azalia Plantation Blvd., Maysville, NC 28555. He is endorsed by the Southern Baptist Convention. He entered active duty in September 1985. Despite an outstanding record, he was non-selected for Commander in 1999 and 2000 due to the Navy’s systematic discrimination against Non-liturgical s.
CH Wilder experienced blatant and obvious examples of faith group prejudice on many occasions. In violation of 10 U.S.C. § 6031 (a chaplain may conduct public worship according to manner and forms of the church of which he is a member), his Liturgical superior told CH Wilder to conduct an Episcopal service, completely foreign to his religious tradition and individual faith.
From July 1990 to July of 1993, CH Wilder was assigned to Marine Corps Base, Camp S.D. Butler, Okinawa. He was leading the General Protestant service and CH Larry Farrell, a coplaintiff, lead an alternative Pentecostal service in the same chapel at a later time. CH Wilder’s General Protestant service averaged approximately 100 to 125 and CH Farrell’s service averaged 250-275 per week. In June 1992, Episcopal CH Williams, the incoming Marine Expeditionary Force chaplain, visited CH Wilder’s service and made “suggestions” how CH Wilder could “improve” his service. These amounted to making the General Protestant service into an Episcopal service. When CH Wilder refused, he was removed from being pastor of his chapel service, although he was still the Camp Chaplain. CH Williams took over CH Wilder’s General Protestant service, converting it into an Episcopal mass; attendance decreased to about 12 people per week.
CH Wilder started holding a Baptist service in the base theater. When his service became ten times as large as CH Williams’s, CH Williams tried to close CH Wilder’s service, accusing him
begin to run until plaintiff discovers or by reasonable diligence could have discovered, the basis of the lawsuit.” Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C. Cir. 1977).
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of sabotage. CH Wilder became aware of the evidence of the Navy’s systematic and pervasive Non-
liturgical prejudice in 2000 after this lawsuit was filed by talking with other Plaintiffs and seeing evidence of the Navy’s systematic faith group bias. He was forced to retire due to statutory limits on FOS LCDRs. 62. BARBY EARL WILSON (CFGC) entered the CHC in 1977, under an initial endorsement of the Church of God in Christ, a Non-liturgical Christian denomination. He served tours of duty at Governors Island, NY; Norfolk, VA; Little Creek Amphibious Base, VA; Okinawa; Fleet Religious Support Activity; duty as ship’s chaplain; and Director of Pastoral Care Services in Saudi Arabia during the Gulf War. In 1983, he filed a religious discrimination charge against a liturgical chaplain. His superior chaplains told him that if he expected to make the Navy a career he should drop his charge (or change it from a religious to a racial discrimination charge); on principle CH Wilson refused to do so. In 1986, he changed his endorsement to CFGC. Although promoted to LCDR, he was not selected for CDR and retired in 1994 with 17½ years of service having seen that religious and racial discrimination would not let him be promoted. He now lives at
CH Wilson’s injuries include being denied a fair opportunity to compete for Commander and a full career and further promotions in the Navy, denial of promotion to Commander in the Navy and the opportunity to compete for other promotions. The CHC placed CH Wilson under abusive and hostile chaplain supervisors who inflicted great stress and strain on CH Wilson and his family. 63. WILSON W. WINEMAN II (Gibson) resides at 918 Heather Woods Dr., Nampa, ID. He was commissioned and entered active duty July 6, 1992, endorsed by the Church of the Nazarene,
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an evangelical, Non-liturgical faith group. Upon reporting to his initial assignment, his commander asked him if he was going to convert the heathens in the unit to Catholicism, the commander’s denomination. CH Wineman responded it was unlikely since he was a Protestant, but he would be willing to share them 50 - 50 with the commander. His commander then replied in a serious manner, “Another God Damned Protestant. Don’t they know there isn’t a Protestant worth his pay?” This is typical of the sort of religious bias CH Wineman had to contend with. Whereas the normal assignment to a ship is about two years, CH Wineman was assigned to the USS BOXER (a combination amphibious assault ship and helicopter carrier) for four years, including a tour during which the senior chaplain manifested overt suicidal tendencies and disrupted the chapel program. Although a junior chaplain, CH Wineman was called on to address both the suicidal chaplain problem as well as keep the ship’s religious programs functioning.
Six months prior to leaving the ship, he was told by the new command chaplain to phase down and close out his chapel programs, which he did. The ship commander then graded CH Wineman down on his fitness report because his programs were being closed down whereas other programs by the other chaplains continued. In other words, he was penalized for following the guidance of his command (and supervising) chaplain who failed to explain to the commander that CH Wineman was following orders and proper procedure.
CH Wineman was also criticized for not drinking alcohol at official Navy functions and social events even though it is against the ordinances of his faith, and was told by one senior Liturgical chaplain he was “too religious.” The Navy’s bias against Non-liturgical CH Wineman resulted in the Navy’s failure to select CH Wineman twice for promotion to LCDR prior to his medical retirement. CH Wineman was assigned to Camp Pendelton, CA, when he was medically retired.
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64. MICHAEL A. WRIGHT (Adair) resides at 2026 Lynn Place, Longview, WA 98632. He was an active duty Navy Non-liturgical chaplain and an original plaintiff under the pseudonym John Adams when the case was filed. CH Wright, eligible for selection to the grade of Commander when this action was filed, and having heard that senior Navy officials had expressed their displeasure with chaplains who dared to challenge the illegal polices cited herein, feared prejudice and retaliation during the Commander Selection Board if his real name had been revealed before the board adjourned. That Commander board non-selected him because of the Navy’s Nonliturgical prejudice as evidenced by the fact that there were no Non-liturgical chaplain board members and the disproportionate number of liturgical chaplains selected. He has witnessed and been a recipient of instances of discriminatory treatment against Non-liturgical chaplains and preference for liturgical chaplains.
CH Wright was selected to assist in the detailer’s office because of his reputation for excellent administrative skills. When the detailer’s office was being moved to Millington, TN, he was ordered to Millington, although his position as the administrative officer had been eliminated. The senior detailer, with the approval of the CHC, nonetheless promised to make it work for CH Wright by splitting his time between Millington and Washington, D.C. Upon his reassignment to Millington, CH Wright was informed the promised arrangement was not authorized and he was assigned to the chapel in an excess position. The Millington Base Commander rated CH Wright above the Catholic chaplain who was badly overweight and acknowledged he did not do well on his fitness report. The Catholic was promoted and CH Wright FOS.
CH Wright has been subjected to disparate treatment and suffered injury from the Navy’s faith group prejudice and bias as evidenced by his non-selection to CDR, despite his outstanding record. CH Wright was forced to retire at the rank of LCDR due to statutory restrictions.
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65. CHRIS XENAKIS (Gibson) currently resides at 29 North Main St., Cortland, New York. He was commissioned as a Navy chaplain in March 1983, endorsed by the Conservative Baptists. His first assignment was to the Naval Hospital in Oakland, California. On his arrival, two Roman Catholic priests asked him to join in an attempt to get the senior chaplain, a Methodist, relieved for cause, allegedly alcoholism and womanizing. Having just arrived, he refused to take sides. The ensuing investigation went nowhere. A year later, when CH Xenakis was leaving the command, a priest who was later promoted to CAPT told CH Xenakis he was very unhappy with his failure to be a “team player”, i.e., to side with him in his dispute with the senior chaplain, and that he would remember CH Xenakis.
CH Xenakis’ second tour was aboard the USS SARATOGA, replacing an Assembly of God chaplain, a Non-liturgical. The command chaplain, a Presbyterian, and the assistant command chaplain, a Roman Catholic, had not gotten along with the Assembly of God predecessor and transferred their anti-evangelical animus to CH Xenakis. A few months after his arrival, the Presbyterian command chaplain transferred and was replaced by a Non-liturgical chaplain. The hostility toward CH Xenakis stopped and the Catholic chaplain’s attitude softened, a testament to the dramatic positive effect the command chaplain’s theological perspective can have on the personnel under his supervision and in the command.
In 1984-85, CH Xenakis completed certificate programs in crisis counseling and substance abuse counseling and had three articles published in U.S. Naval Institute Proceedings, two of which won awards. In 1990 he was assigned, based on his expertise, to Washington as a “special assistant” for family ministry, where he developed, coordinated and helped lead professional development and training events related to family issues for chaplains and civilian social workers. During the 1991 Gulf War, he wrote a “Return and Reunion” manual that Navy Family Services
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Centers used to help returning sailors and marines readjust to family life. His Washington assignment brought him into the middle of senior officer conflicts, not
unlike his experience at Oakland. Although he was not assigned to the Chief of Chaplains Office, his office was down the hall from the Chief’s office and the Chief and his assistants routinely gave him taskings and guidance at sharp variance with what his own command expected and wanted him to do. His own office was plagued by overt hostility between the Roman Catholic chaplain members and the social workers who were also in the office.
CH Xenakis believes the Chief of Chaplains made improper and illegal communications with the members of the FY96 and 97 selection boards concerning his performance and reputation in the CHC, including recommendations he not be selected for promotion. Roman Catholic and Liturgical chaplains whose records were inferior to that of CH Xenakis’ were selected for promotion by the FY96 and 97 CDR Selection Boards. The FY97 CDR Chaplain Board was one of those investigated by the NIG and the DODIG. Their evidence suggested and the DODIG concluded promotions may have been based on denominational preferences. The report of the investigation by the Minority Affairs Officer, CAPT Stafford, attached as an exhibit herein, clearly shows those selected by the FY97 and 98 boards had records inferior to many of those who were not selected, including CH Xenakis.
CH Xenakis served as a projectionist and recorder on CHC selection boards other than those that considered him. Without commenting on specific board proceedings, he was dumbfounded by the arbitrary comments board members, including board presidents, were allowed to make and how even an innocuous and subtle comment about “Corps reputation” could sway the entire board’s decision for or against a given candidate. “Corps reputation” is not in the records, the only basis on which promotion decisions are supposed to be made.
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ADDENDUM B– PLAINTIFF LIST BY CASE

Chaplaincy of Full Gospel Churches v. [the named Secretary of the Navy],99cv1945;

CHAPLAINCY OF FULL GOSPEL CHURCHES

CARSON, Martha

PURSER, Duane

JOHNSTON, Mark R.

ROYSDEN, Daniel E.,

KITCHEN, Klon

SPALDING, Mary Helen

MERRITT, Denise Y.

WILSON, Barby

Adair v. [the named Secretary of Navy], 00cv566;

ADAIR, Robert H.

LAVELLE, Michael

BELT, Michael

.LINZEY, George W.

BLAIR, William C.

NALL, Timothy D.

DEMARCO, Greg

QUILES, Rafael J.

WILDER, David S.

RUSH, Thomas (Adair

FARRELL, Larry

SWANSON, Lyle

HAMME, Richard F.

WEIBLING, James M.

HARKNESS, Furniss

WRIGHT, Michael A

.

Gibson v. U.S. Navy, 06cv1696

ASSOCIATED GOSPEL CHURCHES

BYRUM, George Philip

ARNOLD, Rich L.

CALHOUN, Andrew

BAILEY, Ray Allen

DEMY, Tim

BRADLEY, Rick P.

DONEY, Patrick T.

Addendum 2-1

07-mc-269 (GK)

Case 1:07-mc-00269-GK Document 134 Filed 10/03/12 Page 206 of 206

DUFOUR, Joseph ELLISON, Floyd C. GARNER, Alan GIBSON, Dave GORDY, John HATCH, William HEINKE, Gary HENDRICKS, Robert L. JOHNSON, Frank JONES, Laurence W. KIRK, Samuel D. KLAPACH, Frank S. KLAPPERT, Tom KOHLMANN, Jan C. LANCASTER, Allen L. LOOBY, James MAK, Manuel

MARSH, Walker, Jr. MITCHELL, David MORENO, Jairo NICHOLS, Dan PORTER-STEWART, Rene` PRINCE, James V. ROMAN, Javier SCOTT, Lloyd STEWART, Gary THOMPSON, Fred A., Jr. THYRION, Glen TORRALVA, Armando TOSTENSON, Thomas Daniel TWAMLEY, James WATSON, Thomas R. WINEMAN, Wilson W.,II XENAKIS, Chris

Addendum 2-2

07-mc-269 (GK)

 
 183 F.Supp.2d 31

183 F.Supp.2d 31 United States District Court,
District of Columbia.
Robert H. ADAIR et al., Plaintiffs, v.
Gordon R. ENGLAND, Secretary of the Navy, et al., Defendants.
Chaplaincy of Full Gospel Churches et al., Plaintiffs, v.
Gordon R. England, Secretary of the Navy, et al., Defendants.
Civil Action Nos. 00–0566 (RMU), 99–2945 (RMU). | Jan. 10, 2002.
Current and former Navy chaplains and ecclesiastical endorsing agency for military chaplains sued Department of Navy (DON) and various Navy officials, alleging favoritism of liturgical Christian chaplains over non-liturgical Christian chaplains, and asserting claims for violation of First Amendment’s Establishment, Free Exercise, and Free Speech clauses as well as due process and equal protection claims. Defendants moved to dismiss. The District Court, Urbina, J., held that: (1) strict scrutiny applied to First Amendment and equal protection claims; (2) administrative exhaustion was not required; (3) chaplains stated Establishment Clause claim in connection with hiring and retention; (4) practice of allowing chaplains to rate other chaplains for promotions did not violate Establishment Clause; (5) practice of having multiple chaplains on promotion boards did not violate Establishment Clause; (6) chaplains stated Establishment Clause and Free Exercise Clause claim in connection with requiring chaplains up for promotion to display code identifying their faith group; (7) DON’s practice of having only “general Protestant” religious service potentially violated Establishment Clause; and (8) chaplains stated free speech claim.
Motion granted in part and denied in part.
West Headnotes (17)
[1] Constitutional Law Advancement, Endorsement, or Sponsorship
of Religion;  Favoring or Preferring Religion
Strict scrutiny analysis, rather than Lemon test,

applies

to

denominational-preference

Establishment Clause cases, in which

government allegedly prefers one religion over

another. U.S.C.A. Const.Amend. 1.

[2] Constitutional Law Armed Services;  Selective Service
Strict scrutiny, not more deferential or “relaxed” scrutiny, applied in Establishment Clause challenge to Department of Navy’s alleged policy favoritism of liturgical Christian chaplains over non-liturgical Christian chaplains; policies in question were not operational, strategic or tactical, and mere fact of military context was insufficient to require deference. U.S.C.A. Const.Amend. 1; 10 U.S.C.A. § 5142.
2 Cases that cite this headnote
[3] Constitutional Law Armed Services;  Selective Service
Strict scrutiny applied in Free Exercise Clause challenge to Department of Navy’s alleged policy favoritism of liturgical Christian chaplains over non-liturgical Christian chaplains, since policies were alleged not to be neutral or of general applicability. U.S.C.A. Const.Amend. 1.

[4] Constitutional Law Strict Scrutiny;  Compelling Interest
In Free Exercise Clause challenge, law that is neutral and of general applicability need not be justified by compelling governmental interest even if law has incidental effect of burdening particular religious practice; a law failing to satisfy those requirements must be justified by compelling governmental interest and must be

183 F.Supp.2d 31

narrowly tailored to advance that interest. U.S.C.A. Const.Amend. 1.

Dismissal on statute of limitations grounds is appropriate only if complaint on its face is conclusively time-barred.

[5] Constitutional Law War and National Security
Strict scrutiny applied in equal protection challenge to Department of Navy’s alleged policy favoritism of liturgical Christian chaplains over non-liturgical Christian chaplains. U.S.C.A. Const.Amend. 5.
1 Cases that cite this headnote
[6] Civil Rights Defenses;  Immunity and Good Faith
Plaintiffs in their complaint alleging First Amendment violations in Navy’s chaplaincy policies were not required to plead fraudulent concealment in anticipation of Navy’s statute of limitations defense; obligation to show fraudulent concealment arose only after Navy put forth affirmative defense of untimeliness. U.S.C.A. Const.Amend. 1; 28 U.S.C.A. § 2401(a).
[7] Limitation of Actions Concealment of Cause of Action
When defendant fraudulently conceals basis of plaintiff’s cause of action, statute of limitations is tolled until time that reasonably diligent plaintiff could have discovered elements of his claim.
[8] Federal Civil Procedure Limitations, Laches and Prematurity

[9] Armed Services Correction of Records in General
Navy chaplains challenging Department of Navy’s allegedly discriminatory policies on Establishment Clause and Free Exercise Clause grounds were not required to administratively exhaust their claims before Board for Correction of Naval Records (BCNR), since BCNR was clemency-oriented administrative body not suited to resolve constitutional challenges. U.S.C.A. Const.Amend. 1; 10 U.S.C.A. § 1552(a).
2 Cases that cite this headnote
[10] Armed Services Appointment and Promotion
Constitutional Law Armed Services;  Selective Service
Denominational preference, i.e. non-neutrality, component was satisfied in non-liturgical Navy chaplains’ Establishment Clause challenge to Department of Navy’s policies for hiring and retaining chaplains, by Department’s alleged institution of and continuing rigid reliance upon “thirds” policy allocating chaplaincies one-third to Catholics, one-third to liturgical Christian Protestants, and one-third to non-liturgical Christian Protestants/others despite evidence that numbers of followers of respective faith groups among Navy personnel broke down approximately 50% non-liturgical Christian Protestant and only 33% Catholic and liturgical Christian Protestant combined. U.S.C.A. Const.Amend. 1.
1 Cases that cite this headnote

183 F.Supp.2d 31

[11] Armed Services Appointment and Promotion
Constitutional Law Armed Services;  Selective Service
Department of Navy’s practice of allowing chaplains to rate other chaplains for promotions did not violate Establishment Clause, precluding action by non-liturgical Christian chaplains alleging that such practice led to discriminatory preference for liturgicals over non-liturgicals; chaplains sitting on selection boards, like other government officials, were presumed to act in good faith, and possibility of discrimination was speculative. U.S.C.A. Const.Amend. 1.
2 Cases that cite this headnote
[12] Armed Services Appointment and Promotion
Constitutional Law Armed Services;  Selective Service
Department of Navy’s practice of having more than one chaplain on five-member selection boards that rated chaplains for promotions did not violate Establishment Clause, precluding action by non-liturgical Christian chaplains alleging that such practice inevitably led to discriminatory preference for liturgicals over non-liturgicals. U.S.C.A. Const.Amend. 1; 10 U.S.C.A. § 612(a)(1).
1 Cases that cite this headnote
[13] Armed Services Appointment and Promotion
Constitutional Law Armed Services;  Selective Service
Constitutional Law War and National Security
Department of Navy lacked a compelling reason for requiring every chaplain who sat before promotion review board to display three-digit code identifying his faith group, i.e. Catholic, liturgical Christian Protestant, or non-liturgical Christian/other, as required to support

non-liturgical chaplains’ Equal Protection Clause and Free Exercise Clause challenge to policy; practice created suspect religious category unrelated to any legitimate promotional objective. U.S.C.A. Const.Amend. 5.
1 Cases that cite this headnote

[14] Constitutional Law Public Employment in General

Non-liturgical chaplains lacked standing to bring

Free Exercise Clause challenge on behalf of

Navy service members against Department of

Navy’s “general Protestant” religious services;

service members were free to bring their own

constitutional

challenge.

U.S.C.A.

Const.Amend. 1.

1 Cases that cite this headnote

[15] Armed Services Persons in the Armed Services, and Militia
Called Into Service of the United States Constitutional Law
Armed Services;  Selective Service
Department of Navy’s policy of having only “general Protestant” religious service for its Protestant Christian personnel, rather than separate liturgical and non-liturgical Protestant services, potentially violated Establishment Clause; policy could result in services reflecting liturgical Christian denominations to exclusion of non-liturgical denominations, and Navy’s explanation that practice was necessary to accommodate as many service members as possible with limited number of chaplains did not amount to compelling interest. U.S.C.A. Const.Amend. 1.
1 Cases that cite this headnote

[16] Armed Services Officers

183 F.Supp.2d 31

Constitutional Law Members of Armed Services
Non-liturgical Navy chaplains stated Free Speech Clause claim against Department of Navy by alleging that Department without any compelling reason to do so engaged in favoritism of liturgical Christian chaplains over non-liturgical Christian chaplains through various means including provision of facilities, performance ratings, duties, discipline system, and availability of career-planning information. U.S.C.A. Const.Amend. 1.
[17] Civil Rights Employment Practices
Federal employees alleging religious discrimination amounting to constructive discharge were not required to set forth elements of prima facie case of constructive discharge at initial pleading stage. U.S.C.A. Const.Amend. 1.
1 Cases that cite this headnote
Attorneys and Law Firms *34 Arthur A. Schulcz, Sr., Vienna, VA, for all plaintiffs and Chaplaincy of Full Gospel Churches. Thomas E. Caballero, U.S. Department of Justice, Civil Division, Washington, DC, for defendants.
Opinion
MEMORANDUM OPINION
DENYING IN PART AND GRANTING IN PART THE DEFENDANTS’ MOTION TO DISMISS; DENYING AS MOOT THE DEFENDANTS’ MOTION TO HOLD THE PROCEEDINGS IN
ABEYANCE; DENYING WITHOUT PREJUDICE THE PLAINTIFFS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT; DENYING WITHOUT

PREJUDICE THE PLAINTIFFS’ MOTION TO ALLOW A CHAPLAIN PLAINTIFF TO USE A
PSEUDONYM
URBINA, District Judge.
I. INTRODUCTION
These cases incite a probing scrutiny of the First Amendment’s Establishment and Free Exercise Clauses. While the vast majority of First Amendment religion cases involve laws or governmental policies that allegedly promote or inhibit religion in relation to the secular realm (e.g., school-voucher cases, prayer-in-school cases), the instant cases implicate the more unusual claim that governmental policies favor one religion over another.
Although the above-captioned cases are not consolidated for all purposes, they have been consolidated for purposes of the pending motions.1 In the Chaplaincy case, the plaintiffs are an endorsing agency *35 for military chaplains and seven of its individual members. In the Adair case, the plaintiffs are 17 current and former non-liturgical chaplains in the Department of the Navy (“the defendants”, “Navy”, or “DON”). In both cases, the plaintiffs allege that the Navy has established and maintained an unconstitutional religious quota system for promotion, assignments, and retention of Navy chaplains, in violation of both the Establishment Clause and the Free Exercise Clause of the First Amendment, and the Equal Protection Clause of the Fifth Amendment. Specifically, the plaintiffs allege that the Navy’s policies and practices favor liturgical Christian chaplains over non-liturgical Christian chaplains.
The principal motion before the court is the defendants’ motion to dismiss the complaint in the Adair case. For the reasons that follow, the court will deny in part and grant in part the defendants’ motion to dismiss. In addition, because the court declines to convert the defendants’ motion to dismiss into a motion for summary judgment, the court will deny without prejudice the plaintiffs’ motion for partial summary judgment and will order a briefing schedule on the plaintiffs’ motion.
Moreover, because the court will now resolve the defendants’ motion to dismiss, the court will deny as moot the defendants’ motion to hold in abeyance the proceedings on the plaintiffs’ motion for partial summary judgment until the court resolves the defendants’ motion to dismiss. Lastly, the plaintiffs filed a motion to allow one chaplain plaintiff, who feared harassment and retaliation, to use a pseudonym to pursue this litigation.

183 F.Supp.2d 31

Because the plaintiffs filed a motion for class certification, which would render the motion for a pseudonym moot, the court will deny without prejudice the plaintiffs’ motion to allow one plaintiff to use a pseudonym and will revisit the issue, if necessary, after the court has ruled on the plaintiffs’ motion for class certification.
II. BACKGROUND
A. Factual History2
1. The Navy Chaplain Corps
Congress provided for the organization of the Navy Chaplain Corps, whose members are commissioned Naval officers who possess specialized education, training, and experience “to meet the spiritual needs of those who serve in the Navy and their families.” See Adair First Am. Compl. (“Compl.”) at 21; see also Mot. to Dismiss at 4 (citing 10 U.S.C. § 5142); Katcoff v. Marsh, 755 F.2d 223 (2d Cir.1985) (rejecting Establishment Clause challenge to Army chaplaincy program since such program was necessary to protect Army personnel’s free-exercise rights).
To comply with this congressional directive, the Department of Defense (“DoD”) established a system to recruit professionally qualified chaplains for service in the Armed Forces “to provide for the free exercise of religion for all members of the Military Services, their dependents, and other authorized persons.” See Mot. to Dismiss at 4 (quoting 32 C.F.R. § 65.2). The defendants explain that chaplains serve as Naval officers and, when seeking promotions, pursue the standard *36 course for advancement through promotion to higher grades. See id. (citing 10 U.S.C. § 5142). Like other military officers, chaplains receive periodic reviews by promotion boards to determine which chaplains should be recommended for promotion. See id. (citing 10 U.S.C. §§ 611 and 5142). The promotion boards are composed of five or more members, at least one of whom must be from the category under review. See id. at 4–5 (citing 10 U.S.C. § 612). Until recently, the Navy’s chaplain promotion boards have generally included one line officer and four Chaplain Corps officers.3 See id. at 5.

2. Definitions
The Navy divides most of its Christian personnel into three general categories: Catholic, liturgical Protestant, and non-liturgical Christian. See Compl. at 21. The plaintiffs are all non-liturgical Christians. The Navy uses the term “special worship” to denote a small number of Christian and non-Christian faith groups that have unique or special needs for their worship and religious practices, including Jewish, Seventh–Day Adventist, Christian Science, Latter–Day Saints (Mormons), Muslim, Hindu, and other religions. See id. at 21 n. 3.
The term “liturgical Protestant” refers to those Christian Protestant denominations whose services include a set liturgy or order of worship. See Compl. at 21. According to the plaintiffs, “[t]his primarily includes those Protestant traditions or denominations that began during the Protestant Reformation and who retained an established liturgy in their worship services such as Lutheran, Reformed and Episcopal denominations, and the denominations which later evolved from them, e.g., Presbyterian and Methodist.” Id. at 21–22. The plaintiffs explain that while every church “has some ‘order’ to its worship,” these Protestant denominations do not have a worship service without the prescribed liturgy. See id. at 22 n. 4. Another common feature of these liturgical denominations is that they all practice infant baptism. See id. at 22. Also known as “high church” or “main line churches,” “liturgical Protestant” is used by the plaintiffs to refer to chaplains of the Lutheran, Episcopal, Methodist, Methodist Episcopal, United Church of Christ, Congregational, Reformed and Presbyterian denominations, and the Orthodox tradition.4 See id.
In contrast, “non-liturgical” denotes Christian denominations or faith groups that do not have a formal liturgy or order in their worship service. See Compl. at 22. According to the plaintiffs, these groups baptize only adults or children who have reached “the age of reason” and their clergy do not usually wear vestments or special religious dress during services. See id. Referred to by some Navy chaplains as “low church,” the non-liturgical Christian categories include Baptist, Evangelical, Pentecostal, and Charismatic faith groups. See id. The Navy often refers to these faith groups as “non-liturgical Protestant.” See id. The plaintiffs belong to this category and represent Southern Baptist, Christian Church, Pentecostal, and other non-liturgical Christian faith groups. See id.
3. Parties

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In the Adair case, 17 current and former non-liturgical Christian chaplains filed *37 suit.5 The plaintiffs sue on their own behalf and, as a proposed class, on behalf of similarly situated chaplains.6 The lawsuit challenges religious discrimination in the Navy Chaplain Corps (“the Chaplain Corps” or “the Corps”), “including the establishment of illegal religious quotas for Navy chaplain promotions and career opportunities; the establishment of a preferred religious tradition and a religious patronage system in the Corps; and creation of a pervasive climate of bias, animosity and deceit toward non-liturgical Christian Navy chaplains ....” Compl. at 4. In addition, the plaintiffs plead violations of the First and Fifth Amendments in the Corps’ promotion, retention, and separation decisions. See id.
A sampling of the individual plaintiffs’ allegations is as follows.
Plaintiff Robert Adair enlisted in the Navy in January 1967. See id. at 5. After completing his enlistment in 1970, he attended college and then earned a Master of Divinity degree in 1977. See id. The Southern Baptist convention, a non-liturgical Christian denomination, endorsed him and he became an active-duty Navy chaplain in 1979. “Despite his outstanding service, he was selected for early retirement in [Fiscal Year 1995] by a Selective Early Retirement Board (SERB) that selected only non-liturgical Christian chaplains while allowing liturgical chaplains with inferior records to continue on active duty.” Id. Plaintiff Adair charges that he involuntarily retired in 1996. He alleges that, “[b]ut for the SERB decision, believed to rest on illegal religious discrimination and animosity toward his faith group, [plaintiff] Adair would have continued on active duty and retired at a higher pay rate.” Id.
Lieutenant Michael Belt, an active-duty chaplain since 1991, alleges that a liturgical Protestant chaplain berated him for preaching that “men who call themselves Christians should live as Christians.” See Compl. at 5. This liturgical Protestant chaplain allegedly gave Lieutenant Belt a low mark on his fitness report because he made this statement. See id. After Lieutenant Belt and another non-liturgical chaplain reformatted a Protestant worship service with low attendance, the congregation supposedly grew from 40 to about 130. See id. The liturgical Protestant chaplain who rated him, however, allegedly told him that his style of worship was “hogwash” and took over the service, returning it to a liturgical service. See id.
Dr. Gregory De Marco served as an enlisted Navy “hard hat” deep-sea diver from 1972 to 1981, at which point he left the Navy to attend a seminary. See Compl. at 6. In 1983, he was commissioned as a non-liturgical Christian

chaplain and remained in the U.S. Naval Reserves until he was recalled to active duty in 1987. See id. The Navy promoted him to lieutenant commander in 1993 and he remained on active duty until 1998. See id. In December 1997, the liturgical command chaplain allegedly criticized plaintiff De Marco for ending his prayers “in Jesus [sic] name.” See id. When plaintiff De Marco “insisted on praying in accordance with his beliefs and religious tradition,” the liturgical command *38 chaplain allegedly rated him in a manner that made him noncompetitive for promotion. See id. The plaintiff claims that this rating was based on “faith group prejudice and bias.” See id. Because he allegedly suffered such significant hostility and prejudice, he decided to retire early to “save further humiliation, minimize his personal and professional injury, and minimize the disruption and damage to his family.” Id. at 7. In effect, Dr. De Marco claims that the Navy’s actions constituted a constructive discharge from his job based on religious prejudice. See id.
Another plaintiff, Furniss Harkness, asserts that the Navy denied him a promotion in retaliation for his successful challenge of a Navy policy to the Navy’s Inspector General several years earlier. See Compl. at 7–8. Other named plaintiffs claim that the Navy discriminated against non-liturgical Christian chaplains by selecting them in very large proportion for early retirement. In addition, instead of being selected for early retirement by the SERB, they were allegedly personally pre-selected by the Chief of Chaplains. See id. at 9.
The plaintiffs also claim that the Navy exhibited a systematic pattern of prejudice against non-liturgical Christian chaplains with prior military service. See id. at 11. “[T]he motivation behind this prejudice is the liturgical hierarchy’s fear that a non-liturgical chaplain’s prior military service gives him a competitive edge against other liturgical chaplains.” Id. According to the plaintiffs, prior service can give a chaplain a greater understanding of how the Navy works and can provide an instant rapport with the sailors and Marines, resulting in more effective ministry and thus better fitness reports. See id. “In an equitable promotion system, some of these prior service chaplains would rise to the top of the Chaplain Corps, posing a threat to liturgical domination and control.” Id. at 11–12.
Plaintiff James Wiebling states that he would have brought his claim against the Navy sooner, but the defendants deliberately and fraudulently concealed information from him. See Compl. at 12–13. He became aware of this supposed pattern of prejudice “only in late 1999 when ... he learned of the Stafford Report and its implications.”7 Id. at 12. He and several other named plaintiffs therefore ask for an equitable tolling of the statute of limitations. See id. at 13 and n. 2.

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The defendants in the Adair case, all sued in their official capacities, are Gordon R. England, Secretary of the Navy, Vice Admiral Norbert R. Ryan, Chief of Naval Personnel, Rear Admiral Byron Holderby, Jr., Chief of Chaplains, Rear Admiral Barry Black, Deputy Chief of Chaplains, and the United States Navy. See Compl. at 3.
B. Procedural History
In the companion case, Chaplaincy of Full Gospel Churches v. England, Dkt. No. 99cv2945, the plaintiffs filed their complaint on November 5, 1999. On January 10, 2000, the plaintiffs filed an amended complaint. Chaplaincy of Full Gospel Churches (“CFGC”) is an ecclesiastical endorsing agency that certifies non-liturgical Christian clergy for service in the military.8 See Chaplaincy First Am. Compl. at 1, 3. The DoD has approved CFGC as an endorsing agency since 1984. See Dkt. No. 99cv2945, Mem. Op. dated August 17, *39 2000 at 4 (Green, J.).9 CFGC brought suit on behalf of itself and several of its chaplains, seeking both remedial and prospective relief. On February 2, 2000, the plaintiffs filed a motion for a temporary restraining order and a preliminary injunction, which the court denied. See Mem. Op. dated February 15, 2000 (Green, J.).
Meanwhile, on February 1, 2000, the defendants filed a motion to dismiss the amended complaint. On February 22, 2000, the plaintiffs filed a motion for leave to file a second amended complaint. The parties fully briefed these two motions. Then, on June 23, 2000, the plaintiffs filed a motion for partial summary judgment. The defendant responded to this motion with a motion to hold in abeyance the proceedings on the plaintiffs’ joint motion for partial summary judgment until the court resolved the defendants’ motion to dismiss.
On August 17, 2000, the court issued a Memorandum Opinion, granting in part and denying in part the defendants’ motion to dismiss for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1). See Mem. Op. dated August 17, 2000 (Green, J.). The court held that while CFGC had standing to sue on behalf of its chaplains, it lacked standing to sue on its own behalf. See id. Moreover, the court concluded that the plaintiffs could seek only prospective, and not remedial, relief. See id. The court also granted the plaintiffs’ motion to file a second amended complaint. See id.
In the Adair case, the plaintiffs filed their class-action complaint on March 17, 2000. On June 16, 2000, the defendants filed a motion to dismiss. As they did in the

companion case, the plaintiffs filed a motion for partial summary judgment on June 23, 2000, and the defendants again responded by filing a motion to hold in abeyance the proceedings on the plaintiffs’ motion for partial summary judgment until the court had resolved the defendants’ motion to dismiss.10
On September 5, 2000, the Adair plaintiffs filed a motion to amend their complaint, seeking to add six more plaintiffs, one additional Navy defendant, and three additional counts. See Compl. at 3. On September 22, 2000, the defendants filed a motion to dismiss the amended complaint. In addition, the parties jointly proposed that their briefing on the defendants’ motion to dismiss the original complaint be incorporated as the briefing for the defendants’ motion to dismiss the amended complaint. Judge Green agreed, and consolidated the Adair and Chaplaincy cases for purposes of resolving the preliminary motions and ordered that the briefing on the defendants’ motion to dismiss in the Adair case would control.11 See Order dated September 26, 2000 (Green, J.). Lastly, on October 21, 2000, the Adair plaintiffs filed a motion to allow a chaplain plaintiff to use a pseudonym in order to pursue this litigation.
*40 On January 10, 2001, the Calendar Committee of the United States District Court for the District of Columbia randomly reassigned these two cases to this member of the court. Accordingly, the motions now pending before the court are as follows: (1) the defendants’ motion to dismiss; (2) the defendants’ motion to hold in abeyance the proceedings on the plaintiffs’ motion for partial summary judgment until the court resolves the defendants’ motion to dismiss; (3) the plaintiffs’ motion for partial summary judgment; and (4) the plaintiffs’ motion to allow a chaplain plaintiff to use a pseudonym.
C. The Plaintiffs’ Allegations
The plaintiffs claim that in the late 1960’s and 1970’s, America’s religious demographics began a substantial shift away from liturgical Protestant denominations toward the non-liturgical Christian churches, which the plaintiffs represent. See Compl. at 29. “This trend continues today.” Id.
Until the mid to late 1980’s, the Navy—like the Army and the Air Force—used a rough proportional-representation plan to determine how many chaplains it would hire from various religious denominations, according to the plaintiffs.12 See id. at 29. Under this system, the Navy allegedly allocated chaplains among the various faith groups based on objective criteria,

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such as the relative percentage a religion represented in the total American population, as reported in sources such as the annual Yearbook of American and Canadian Churches. See id. For example, if 100 Navy chaplains slots were authorized and Catholics comprised 25 percent of the American religious population and Baptists made up 20 percent, the Navy would try to hire 25 Catholic and 20 Baptist chaplains. See id.
Starting in the late 1980’s and continuing to the present, however, the Navy—unlike the Army and the Air Force—allegedly switched to a subjective “needs of the service” policy, which, the plaintiffs plead, became the “thirds policy.” See Compl. at 29. Under the thirds policy, the Navy allegedly reserves one-third of its slots in the Chaplain Corps for liturgical Christians, one-third for Catholics, and one-third for members of every other religion. See id. at 29–30. Non-liturgical Christians are included in this last, catchall category, along with all the “Special Worship” groups, such as Jewish, Muslim, Hindu, Buddhist, etc. See id. In addition, “one third of Navy chaplain promotions, retentions on active duty and accessions were allegedly reserved for liturgical Protestant chaplains, whereas this group represented less than one eleventh of the religious membership of the Navy.” Id. at 30.
According to the plaintiffs, top officials in the Chaplain Corps instituted the thirds policy to continue a heavy representation of liturgical Christians in the Corps itself and in the Corps’ highest command posts, despite the fact that the percentage of liturgical Christians was declining both in the country and in the Navy. See id.
1. The Navy’s Religious Demographics
The Armed Forces records religious-preference data for its service members. See Compl. at 27 Ex. 1 (a July 1998 report by the Defense Manpower Data Center (“DMDC”)), Ex. 2 (a February 2000 DMDC report). The plaintiffs charge that the DMDC data demonstrates that liturgical Protestants made up about 8.76 percent of all DON active-duty personnel, i.e., both sailors and Marines, in 1998 and *41 about 8.03 percent in 2000.13 See Compl. at 28 (citing Exs. 1, 2). Specifically, in the 1998 report, service members of the various Methodist named or affiliated denominations comprised about 3.78 percent of all DON personnel, Presbyterian-related denominations comprised about 1.05 percent, the various Lutheran denominations comprised about 2.90 percent, Episcopal and Reformed Episcopal comprised about .73 percent, Methodist Episcopal comprised .20 percent, Reformed comprised about .10 percent, Orthodox .10 percent, for a

total of about 8.76 percent. See id. (citing Ex. 1). This total had dropped to 8.03 percent in the February 2000 report. See id. (citing Ex. 2).
In 1998, Catholics represented 24.09 percent, or 132,429 out of 549,800 DON personnel, and 23.56 percent in 2000. See id. (citing Exs. 1, 2). Thus, the plaintiffs point out that Catholics and liturgical Christians combined comprised less than one-third of the Navy’s total personnel, with 32.85 percent in 1998 and 31.59 percent in February 2000. See id. According to the Navy’s alleged thirds policy, however, these groups are receiving two-thirds, or 66.67 percent, of all chaplain slots. See id. at 29–30. On the other hand, identified non-liturgical Christian faith groups represent about 50 percent of the Navy’s religious population, but the defendants allegedly place the non-liturgical Christians in the catchall group, whereby all other religions combined receive about one-third of the chaplain slots. See id. at 28.
2. The Specific Counts in the Plaintiffs’ Complaint
The allegations set forth in the plaintiffs’ 13–count complaint can be grouped into several categories.14 As an overview, the three principal categories are the plaintiffs’ First Amendment Establishment Clause claims, Free Exercise Clause claims, and their Equal Protection Clause claims. Additional claims include allegations that the defendants fraudulently concealed evidence of the plaintiffs’ causes of action, that the Navy constructively discharged certain plaintiffs from their work by making the work conditions very difficult, that the Navy abridged the plaintiffs’ religious speech in violation of the First Amendment, and that the Navy violated the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
The court now turns to the allegations in more detail.
First, the plaintiffs charge that the Navy has established and maintained an unconstitutional religious quota system. Specifically, they claim that the Navy’s objective in instituting the thirds policy was to create a denominational barrier that allows liturgical Protestant chaplains to maintain control of the Chaplain Corps. See Compl. at 29–32. In essence, the non-liturgical Christian chaplains allege that the Navy has devised a system through which it hires, promotes and retains chaplains from liturgical denominations, such as Catholics *42 and liturgical Protestants, at a rate much greater than the liturgical Christians’ representation among all DON personnel. See Compl. at 32.
For example, the plaintiffs charge that chaplain promotion

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boards consistently promote at least the same number of liturgical and non-liturgical Christian chaplains, elevating liturgical Christian chaplains in numbers far greater than the proportionate rate of liturgical Christians in the Navy. See id. at 30. They also plead that the promotion boards promote at least one-third liturgical Protestant chaplains in the Corps. See id.
As part of this system to maintain significant representation of liturgical Protestants in the Corps, the Navy also allegedly institutes a discriminatory retention policy, whereby it retains liturgical Protestants beyond their initial three-year tour of service at a disproportionately high rate as compared to their total membership percentage in the Navy. See id. at 31. According to the plaintiffs, the Navy has also routinely refused to retain non-liturgical Christian chaplains, resulting “in the over-representation of liturgical Protestant chaplains and the under-representation of non-liturgical Christians in the Navy chaplain program.” Id. In short, the Navy’s decisions regarding whether to retain chaplains are allegedly not based on “meeting the religious free exercise needs of Navy personnel, but solely on the basis of the chaplain’s religious faith group.” Id.
The defendants also allegedly promote a disproportionate number of high-church Protestant and Catholic chaplains to the senior officer ranks, i.e., Captain and Admiral, and key billets15 in the Chaplain Corps. See Compl. at 32. Through July 2000, only one non-liturgical person had held the office of Chief of Chaplains since 1917. See id. (citing Ex. 3).
The plaintiffs’ exhibit 4 is a January 25, 1995 memorandum from the Marine Corps Chaplain, Larry Ellis, to the Navy Chief of Chaplains (“the Ellis Report”). See id. at 32–33, Ex. 4. The plaintiffs point to the Ellis Report as documentation for “years of apparent institutional bias against ‘low-church’ Protestant Navy chaplains in regard to assignments to the most prestigious and influential positions” within the Corps. Compl. at 32–33. As of the time of the report, only 14 clearly identifiable non-liturgical Christian chaplains had filled the 119 top Chaplain Corps positions in the previous 15 years, a fill rate of 11.8 percent. See Compl., Ex. 4. On the other hand, the fill rate for liturgical Protestants was 53.8 percent, see id., “far out of proportion to the percentage of the liturgical denominations in the general population of the Navy.” See id. at 33, Ex. 4. Even after learning of the Ellis Report’s findings, the Navy allegedly took no action to address this disparity. See id.
According to the plaintiffs, these policies serve no legitimate purpose, are not based on remedying pass discrimination, and are not narrowly tailored. See Compl.

at 34. “The effect of the Navy’s denominational quota system and granting religious preferences to the liturgical Protestant religious tradition, is to impermissibly endorse liturgical Protestant[ism] as an ‘official’ preferred religious tradition in violation of the First Amendment’s Establishment Clause.” Id.
The next major set of allegations revolves around the defendants’ chaplain-promotion system. First, the plaintiffs allege that, unlike the Army and Air Force, which use selection boards comprised of officers from other branches of the armed *43 forces to select chaplains for promotion, chaplains dominate the Navy’s chaplain selection boards. See Compl. at 37. Second, although the boards may consider only merit and not denominational affiliation, each promotion candidate’s three-digit “faith group identifier” code is prominently displayed during the promotion process. See id. “This procedure has no other purpose than to identify a candidate’s faith group to the board and thereby create a suspect religious category unrelated to any legitimate Navy objective.” Id. Third, the plaintiffs assert that placing more than one chaplain on a chaplain promotion board perpetuates the cycle of illegal religious quotas, unconstitutionally delegates a governmental function to a religious body, and places a candidate’s religious affiliation over a candidate’s merits. See id. at 38–40.
Fourth, the plaintiffs claim that liturgical Protestant and Catholic chaplains have dominated the chaplain promotion boards even though these traditions represent less than a third of the religious preferences of Navy personnel. See id. at 38. A rear admiral, the Navy Chief of Chaplains (“the Chief”) approves all the members of the Navy’s chaplain promotion boards. See id. at 37. The plaintiffs charge that the Chief informed one board of his personal list of which chaplains constituted “the future of the Navy.” See id. at 38. The board allegedly promoted the chaplains the Chief identified, which violates 10 U.S.C. §§ 615 and 616(f)(2), the provisions that define the type of information that may be provided to the board and state that no official may exercise improper influence on the board. See id.
To support their allegations, the plaintiffs include a report on chaplain-promotion policies, issued on December 23, 1997 by Captain J.N. Stafford, special assistant for Navy Minority Affairs (“the Stafford Report”). See Compl., Ex. 5. The Stafford Report concluded “that the board may have systematically applied a denominational quota system.” Compl. at 40. It called for an Inspector General (“IG”) investigation into the Chaplain Corps’ selection-board processes. See id. The Stafford Report also said, “[i]f it is established that improper selection practices have systematically occurred, [then we should] shift responsibility for selection of chaplains for

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promotion to the line community.” Compl., Ex. 5, at 3. In March 1999, a DoD IG investigation into the same boards found that a candidate’s faith group “may have been a factor in” the decisionmaking process for the 1998 commander boards in selecting chaplains for promotion. See id. at 40 (citing Ex. 6). The investigation also said, however, that there is “little indication of deficiencies in the Navy selection board process.” Id., Ex. 6.
The last promotion-related claim focuses on the Navy’s use of regional chaplains, by which senior chaplains (primarily liturgical Christians) rate other chaplains rather than having a base commander rate each chaplain on his or her base. See id. at 44. Alleging that the system does not ensure religious neutrality, the plaintiffs claim that this arrangement violates the First Amendment. See id.
Next, the plaintiffs allege that the Navy’s policy of having only a “general Protestant” service and restricting other forms of non-liturgical religious services violates both the First Amendment’s Establishment and Free Exercise Clauses. See Compl at 35. The plaintiffs claim that the defendants have tried to establish a de facto liturgical Christian religion for its personnel, thereby limiting the opportunity for non-liturgical Christian personnel to meet their religious needs. See id. By mandating a liturgical “general Protestant” service, the Navy has tried to shape *44 all Protestant service members “into a single liturgical worship mold while ignoring or actively hindering the religious needs of non-liturgical personnel.” Id. The Navy has allegedly done this by denying or restricting non-liturgical Christian chaplains’ ability to conduct services by removing non-liturgical Christian chaplains from preaching or conducting religious services and by opposing non-liturgical Christian worship alternatives. See id. For example, at the Navy’s Naples, Italy base in 1999, there were nine English-speaking non-liturgical churches off-base, some of which met in “substandard facilities which were inadequate to hold the number of those wanting to attend, while Catholic and liturgical Protestants enjoyed spacious on post facilities designed for their styles of worship.” Id. at 36. Moreover, the plaintiffs assert that senior officials in the Corps have criticized and berated non-liturgical Christian chaplains “for preaching and teaching on truths of the Christian faith and their specific religious tradition.” See id. at 35.
Concluding this category of allegations, the plaintiffs lay out a broad claim that the Navy’s policies and practices exhibit “manifest hostility” to non-liturgical Christian chaplains. See Compl. at 45. Specifically, although there are four times as many DON members of non-liturgical Christian faith groups than those of liturgical Protestant denominations, the Navy allegedly allocates chaplain positions in an irrational and arbitrary basis designed to hinder non-liturgical Christian faith groups. See id. at 46.

The plaintiffs also charge that senior chaplains have intentionally given some non-liturgical Christian chaplains lower performance ratings than similarly situated liturgical Protestant and Catholic chaplains “solely on the basis of their religious identification and beliefs despite evidence of the non liturgical chaplain’s superior performance.” Id. Moreover, the Navy allegedly has a two-tiered system of discipline, whereby liturgical Christian chaplains receive lighter punishments for similar offenses than their non-liturgical Christian counterparts. See id. at 47. In addition, while the Navy provides career-planning information, such as postgraduate education opportunities to liturgical Christian chaplains, it does not give the same type of information to non-liturgical Christian chaplains. See id.
In sum, the plaintiffs protest their “second-class” treatment, which allegedly violates the Establishment, Free Exercise, and Free Speech Clauses of the Constitution’s First Amendment, and the equal-protection component of the Fifth Amendment’s Due Process Clause. See id.
Turning to the claims that focus on the Free Exercise Clause, the non-liturgical chaplains charge that some non-liturgical Christian chaplains and similar faith Navy personnel have been denied and selectively excluded from access to Navy facilities on the basis of discrimination against religious speech with a specific viewpoint, i.e., non-liturgical, evangelical, and low-church. See Compl. at 42. Essentially, the plaintiffs allege that the Navy’s discriminatory policies and hostility deny both non-liturgical Christian chaplains and their would-be congregants their First Amendment constitutional right to the free exercise of their religion by denying or severely limiting their access to chaplains and worship services of their faith groups. See id. at 42 (citing 32 C.F.R. § 65.3). The plaintiffs claim that the under-representation of non-liturgical Protestant chaplains limits the ability of these chaplains to meet their community’s religious needs. Thus, “non-liturgical chaplains must expend more effort to meet the needs of their faith group members than is required by liturgical Protestant chaplains.” Id. The plaintiffs *45 charge that these policies “are deliberately motivated by faith group bias.” Id. at 43.
In a related claim, the plaintiffs plead that the defendants discriminate against non-liturgical Christian chaplains in violation of the First and Fifth Amendments by unlawfully disapproving the religious speech contained in their non-liturgical Christian tradition. See id. at 43–44. In a separate claim, the plaintiffs allege that since the Establishment Clause limits the taxing and spending power conferred by Article I, Section 8 of the Constitution, Congress may not appropriate tax funds to support the Navy’s use of such funds to favor one religion,

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in violation of the Establishment Clause. See id. at 45.
Next, the non-liturgical Christian chaplains anticipate a statute-of-limitations defense and claim that the Navy has fraudulently concealed evidence that would support the plaintiffs’ causes of action. See Compl. at 47–51. That is, the Chaplain Corps “has lied to, misrepresented to, or otherwise mislead [sic] plaintiffs and others who have raised questions about the appearance of quotas, faith group prejudice, and/or the fairness or objectivity of the chaplain promotion and [retention] processes.” Id. at 48–49. This alleged fraudulent concealment has prevented the plaintiffs and their class from seeking timely redress. See id. at 50. Accordingly, the plaintiffs argue that this “deception and concealment” warrants an equitable tolling of any statute of limitations for claims covered by this concealment and equitably estops the Navy from asserting a statute-of-limitations defense. See id.
Finally, the Navy has allegedly sought to retaliate and punish the plaintiffs who have brought this lawsuit, and has constructively discharged certain plaintiffs by making their work conditions intolerable to the point that the defendants gave these plaintiffs no choice but to leave the Navy or retire. See Compl. at 51. In addition, the non-liturgical Christian chaplains claim that the Navy has violated the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., by illegally burdening the religious rights of the plaintiffs without a substantial governmental purpose. See id. at 51–52.
The plaintiffs seek declaratory relief and a permanent injunction. Among other things, they ask the court to strike down: the Navy’s alleged thirds policy; the Navy’s practice of placing more than one chaplain on chaplain promotion boards; the Navy’s practice of allowing the Chief of Chaplains to determine the makeup of a promotion board or a SERB; the Navy’s policy of identifying the faith group of each chaplain to be considered by promotion boards or SERBs; and the Navy’s alleged endorsement of “an official liturgical General Protestant service.” See Compl. at 52–54. In addition, the plaintiffs call for an end to the alleged “dominance of the Navy’s senior ranks and key billets by liturgical Protestant chaplains, out of all proportion to their actual percentages in the Navy,” as well as the over-representation of liturgical Christian chaplains in the entire Chaplain Corps. See id. at 55. In essence, the plaintiffs ask the court for an order directing the Navy to bring both the entire Chaplain Corps and its senior officials “into line with the Navy’s religious demographics.” See id. at 59.
The court now turns to the defendants’ motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

III. ANALYSIS
A. Legal Standard for a Motion to Dismiss
On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of *46 establishing that the court has jurisdiction. See District of Columbia Retirement Bd. v. United States, 657 F.Supp. 428, 431 (D.D.C.1987). In evaluating whether subject-matter jurisdiction exists, the court must accept all the complaint’s well-pled factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overturned on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The court is not required, however, to accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations. See, e.g., Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990).
Moreover, the court need not limit itself to the allegations of the complaint. See Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds by 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, the court may consider such materials outside the pleadings as it deems appropriate to determine whether it has jurisdiction in the case. See Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992).
For a complaint to survive a Rule 12(b)(6) motion to dismiss, it need only provide a short and plain statement of the claim and the grounds on which it rests. See FED. R. CIV. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss under Rule 12(b)(6) tests not whether the plaintiff will prevail on the merits, but instead whether the plaintiff has properly stated a claim. See FED. R. CIV. P. 12(b)(6); Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. The plaintiff need not plead the elements of a prima-facie case in the complaint. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C.Cir.2000). Thus, the court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Atchinson v. District of Columbia, 73 F.3d 418, 422 (D.C.Cir.1996). In deciding such a motion, the court must accept all the complaint’s well-pled factual allegations as true and draw all reasonable inferences in the nonmovant’s favor. See

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Scheuer, 416 U.S. at 236, 94 S.Ct. 1683.
B. The Appropriate Standard of Review
Before the court assesses the constitutionality of the defendants’ various policies and practices at issue, the court must first determine what the appropriate standard of review should be in this case. While the parties disagree about some of the applicable standards and find common ground on others, the court determines that the constitutional issues implicated by this dispute are sufficiently intricate to warrant an exacting discussion of the applicable standards of review. Accordingly, the court will separate the plaintiffs’ allegations into the three major constitutional rubrics the complaint discusses: alleged violations of the Establishment Clause, the Free Exercise Clause and the Equal Protection Clause. The court will consider in turn, then, the appropriate standard of review for each category.
1. Establishment Clause Claims
As noted previously, most First Amendment religion cases deal with a challenge to a governmental law or policy that allegedly benefits or hinders religion as compared to non-religion. The case at bar, however, raises the much rarer type of First Amendment religion case in which the plaintiffs allege that a law or policy benefits one religious group over another. In these cases, the Supreme Court stands on even more heightened alert than in *47 cases involving religion as opposed to the secular. Because the Supreme Court has established two distinct tests depending on which type of Establishment Clause case is at issue, and because the parties disagree about which test should apply, the court will begin its inquiry with an analysis of the relevant Supreme Court precedent.
a. Lemon or Larson?
The seminal Establishment Clause case involving religion as it relates to non-religion was Lemon v. Kurtzman, in which the Supreme Court struck down Rhode Island and Pennsylvania laws designed to provide state aid to boost the salaries of parochial-school teachers. See 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). The Court held that the laws were unconstitutional because they promoted “excessive entanglement between government

and religion.” See id. at 614, 91 S.Ct. 2105. In addition, the Court enunciated a three-pronged test for examining cases in which governmental action allegedly sponsored or hindered religion: to pass constitutional muster, (1) the statute must have a secular legislative purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; and (3) the statute must not foster “an excessive government entanglement with religion.” See id. at 612–13, 91 S.Ct. 2105 (internal citations omitted).16
In subsequent cases, the Supreme Court has used the Lemon test to both uphold and strike down statutes. Declaring that a church’s seeking to advance religion is permissible while a similar attempt on the government’s part is impermissible, the Court upheld a law exempting religious organizations from federal civil rights statutes that prohibited employment discrimination on the basis of religion. See Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter–Day Saints v. Amos, 483 U.S. 327, 337–40, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987); Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (upholding the constitutionality of the Nebraska legislature’s practice of opening each session with a prayer by a chaplain paid with public funds). On the other hand, the Court deemed unconstitutional a New York statute creating a special school district for a small village inhabited by members of one religious sect, the Satmar Hasidim, because it violated the religion clauses’ neutrality principal since its primary effect was to advance religion. See Board of Ed. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994).
[1] The second line of cases began with Larson v. Valente, in which the Supreme Court first applied a strict-scrutiny analysis, rather than the less rigorous Lemon test. See 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). The Court stated that while Lemon’s three-pronged test was appropriate in cases where the government arguably benefited or impeded religion as a whole in relation to the secular, in cases in which government allegedly prefers one religion over another, the more demanding strict-scrutiny analysis applies.17 See id. *48 at 246, 102 S.Ct. 1673. In Larson, the Court considered a section of Minnesota’s Charitable Solicitations Act that provided that only those religious organizations receiving more than 50 percent of their funds from nonmembers were subject to the Act’s registration and reporting requirements. See id. at 230, 102 S.Ct. 1673. The Unification Church, which relied heavily on fundraising from nonmembers, brought suit, charging that the 50–percent rule discriminated against its organization in violation of the Establishment Clause. See id. Demanding strict adherence to the “principal of denominational neutrality,” the Court held that:

183 F.Supp.2d 31

“[t]he fullest realization of true religious liberty requires that government ... effect no favoritism among sects ... and that it work deterrence of no religious belief.” In short, when we are presented with a state law granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality .... Consequently, that [law] must be invalidated unless it is justified by a compelling governmental interest ... and unless it is closely fitted to further that interest. Id. at 246–47, 102 S.Ct. 1673 (internal quotation omitted). Faced with evidence that Minnesota had conducted religious gerrymandering to help the Roman Catholic archdiocese avoid reporting requirements and to force the Unification Church to report, the Court raised concerns about the “risk of politicizing religion.” See id. at 254, 102 S.Ct. 1673. Leaving nothing to doubt, the Court declared that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Id. at 244, 102 S.Ct. 1673.
In the case at bar, the plaintiffs clearly allege that the Navy, through its policies and practices, is favoring chaplains of liturgical Christian faiths over those of non-liturgical Christian faiths. See, e.g., Compl. at 4, 23, 30. The plaintiffs’ Establishment Clause claims, therefore, implicate the Supreme Court’s Larson line of cases rather than Lemon and its progeny. See Larson, 456 U.S. at 246, 102 S.Ct. 1673. Despite what should be readily apparent, the defendants would have the court believe that the D.C. Circuit has somehow overruled the Supreme Court on this issue. See Mot. to Dismiss at 10 n. 7. Specifically, the defendants seem to contend that despite Larson’s clear holding that courts should apply strict scrutiny when assessing laws or policies creating denominational preferences, “this Circuit has expressly reviewed the language in Larson and has chosen to continue applying the Lemon test even to laws that provide benefits to a specific religious sect that are not provided to other sects.” Id.
In support of this proposition, the defendants point to one footnote in a D.C. Circuit case. See id. (citing United Christian Scientists v. Christian Science Bd. of Directors, 829 F.2d 1152, 1162 n. 49 (D.C.Cir.1987)). In United Christian Scientists, the Court of Appeals affirmed a district court ruling that a law granting a church the extended copyright on all editions of a religious text violated the Establishment Clause, and chose to apply the Lemon test rather than the Larson test. See United Christian Scientists, 829 F.2d at 1162 n. 49. Despite the

defendants’ contention, the Court of Appeals made it clear that one of *49 the main reasons it chose to apply Lemon was because “Larson’s application to the case at bar was neither considered by the district court, nor argued before us.” See id. While the Court of Appeals did state that, “[t]he [Supreme] Court has never returned to elaborate upon the doctrinal development it announced in Larson,” id., the defendants’ implication that this single statement signaled the D.C. Circuit’s intent not to follow binding precedent from a Supreme Court case (decided only five years earlier) strikes the court as a significant overstatement.
The course of chronological events further undermines the defendants’ position. The D.C. Circuit decided United Christian Scientists on September 22, 1987. But on June 24, 1987—three months earlier—the Supreme Court decided Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter–Day Saints v. Amos, and left no doubt about the continuing vitality of Larson: “Larson indicates that laws discriminating among religions are subject to strict scrutiny, and that laws ‘affording a uniform benefit to all religions’ should be analyzed under Lemon.” See Amos, 483 U.S. at 339, 107 S.Ct. 2862 (internal citation omitted).18 Moreover, two years later, in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, the Court reiterated Larson’s enduring importance: “we have expressly required ‘strict scrutiny’ of practices suggesting ‘a denominational preference.’ ” 492 U.S. 573, 608–09, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (quoting Larson v. Valente, 456 U.S. at 246, 102 S.Ct. 1673) (holding that while a county’s display of a crèche violated the Establishment Clause, its display of a menorah next to a Christmas tree did not have the unconstitutional effect of endorsing Christianity and Judaism).19 In sum, the court rejects the defendants’ *50 theory that the D.C. Circuit has somehow abrogated the Supreme Court’s decision in Larson. On the contrary, Larson remains alive and well, and its strict-scrutiny standard applies to this case.
b. Should Relaxed Strict Scrutiny Apply?
[2] Moving on, the defendants argue that the Supreme Court has adapted its application of the strict-scrutiny test to the unique circumstances that exist within the military, and that the court should thus apply “a more deferential application of the strict scrutiny test.” See Mot. to Dismiss at 11. To buttress their contention, the defendants rely heavily on the Supreme Court decision in Goldman v. Weinberger, which upheld an Air Force regulation prohibiting an Orthodox Jew from wearing a yarmulke because the Air Force had a strong interest in discipline

183 F.Supp.2d 31

that justified the strict enforcement of its uniform-dress requirement. See 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986). In Goldman, the petitioner claimed that the First Amendment’s Free Exercise Clause allowed him to wear a yarmulke while in uniform even though this would violate Air Force regulation 35–10, which said that no military personnel shall wear headgear while indoors except for armed security police in the performance of their duties. See id. at 505, 106 S.Ct. 1310. In rejecting the petitioner’s challenge, the Court stated that, “[o]ur review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society.” Id. at 507, 106 S.Ct. 1310.
But the Goldman case differs from the case at bar in several crucial respects. First, Goldman dealt with a regulation that involved inherently operational, strategic, or tactical matters. See id. at 507–09, 106 S.Ct. 1310. The challenged regulation related directly to the military’s role in conducting national defense. Indeed, the Supreme Court emphasized this point in its decision and explained that the uniform-dress requirement played a significant part in an operational function of the military:
The considered professional judgment of the Air Force is that the traditional outfitting of personnel in standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission. Uniforms encourage a sense of hierarchical unity by tending to eliminate outward individual distinctions except for those of rank. The Air Force considers them as vital during peacetime as during war because its personnel must be ready to provide an effective defense on a moment’s notice; the necessary habits of discipline and unity must be developed in advance of trouble. We have acknowledged that “[t]he inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex with no time for debate or reflection.”
Id. at 508, 106 S.Ct. 1310 (internal quotation omitted).
Conversely, in the instant case, the issues revolve around considerations that are not related to strictly military affairs or to the defense of the country. That is, the policies at issue here are designed to hire, retain, and promote chaplains to satisfy the religious needs of Navy service members. These policies relate to quality-of-life issues for military personnel and have no specific operational, strategic, or tactical objective. As the defendants themselves acknowledge, Congress provided for the creation of the Navy’s Chaplain Corps “to provide

for the religious needs *51 of Navy personnel.” See Mot. to Dismiss at 4 (citing 10 U.S.C. § 5142) (emphasis added). Moreover, the defendants never try to articulate how the challenged policies and practices—e.g., alleged religious preferences for liturgical Christian chaplains—would further any operational, strategic, or tactical objectives. Indeed, this court is at a loss to see how the defendants could even argue that the alleged policies designed to favor liturgical Christian chaplains could possibly advance an important military objective.
The defendants suggest unconvincingly that because this case places the First Amendment in the military context, the Navy’s chosen policies deserve “substantial deference.” See Mot. to Dismiss at 18. But since operational or strategic considerations are not at issue, the court need not give the military the same level of deference in this case that it otherwise might. Furthermore, the cases the defendants rely on actually weaken their argument. For example, the defendants point to Katcoff v. Marsh for the proposition that:
when a matter provided for by Congress in the exercise of its war power and implemented by the Army appears reasonably relevant and necessary to furtherance of our national defense it should be treated as presumptively valid and any doubt as to its constitutionality should be resolved as a matter of judicial comity in favor of deference to the military’s exercise of its discretion.
Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir.1985) (internal citations omitted) (emphasis added); see also Defs.’ Reply (“Reply”) at 4. While the Katcoff court—which upheld the constitutionality of the Army’s Chaplain Corps as a whole—said that making religion available to soldiers qualified as a crucial imperative, the Navy has not articulated any reason why their policies and practices that allegedly favor liturgical Christianity and inhibit non-liturgical Christianity are “reasonably relevant and necessary to furtherance of our national defense ....” See Katcoff, 755 F.2d at 234. Accordingly, the relaxed strict-scrutiny standard for some cases involving the military does not apply in this case, and the court will apply the usual strict-scrutiny standard.20
The second major distinction between Goldman and the instant case is that the former was a Free Exercise Clause case. See Goldman, 475 U.S. at 504, 106 S.Ct. 1310. While the instant case involves both Free Exercise Clause and Establishment Clause claims, the defendants offer Goldman as ostensible support for the sweeping

183 F.Supp.2d 31

proposition that in all matters relating to the First Amendment and the military, courts should show the armed forces substantial deference. This court rejects such a broad reading of Goldman.

In Goldman, the case presented the Supreme Court only with Free Exercise Clause issues, not Establishment Clause issues. See id. (stating that “Petitioner S. Simcha Goldman contends that the Free Exercise Clause of the First Amendment to the United States Constitution permits him to wear a yarmulke while in uniform ....”). The Court drove home this distinction in discussing the balance between an individual service member’s conduct and the larger goals of the military:

the First Amendment does not

require the military to

accommodate [the wearing of

religious apparel such as a

yarmulke] in the face of its view

that they would detract from the

uniformity sought by the dress

regulations....

The

First

Amendment therefore does not *52

prohibit [the regulations] from

being applied to [Mr. Goldman]

even though their effect is to

restrict the wearing of the headgear

required by his religious beliefs.

Id. at 509–10, 106 S.Ct. 1310. This excerpt clearly demonstrates that the Court was referring to an issue involving an individual’s free exercise of religion, rather than a prohibition on governmental action that an Establishment Clause claim would raise. In sum, while Goldman supports the proposition that an individual service member’s First Amendment right to the free exercise of his religion may be limited in certain circumstances involving the military, the Court has never expanded this rationale to Establishment Clause cases. Barring an explicit directive from the Supreme Court or the D.C. Circuit to do so, this court refuses to take the first step down that slippery slope.

One final point merits discussion. As one district judge has stated in a similar case brought by an active-duty chaplain in California, “[a]lthough this Court is mindful of the Supreme Court’s admonishment that the judiciary should give substantial deference to matters related to management of the military, such protection does not extend to practices that may subvert one’s inalienable constitutional rights.” Sturm v. United States Navy, Dkt. No. 99cv2272 at 7 (S.D.Cal.2000). This court wholeheartedly agrees. In this case, the defendants seem to be telling the court that even if a case implicates crucial constitutional protections, the defendants should still

prevail simply because the case involves the military.
To some extent, the defendants’ confusion is understandable. While the Supreme Court’s legal standard is relatively clear for Establishment Clause cases, Goldman’s instruction for courts to accord “great deference” to the professional judgment of military authorities involving policies or practices that affect First Amendment free exercise claims provides the lower federal courts with little clear guidance. See Goldman, 475 U.S. at 507, 106 S.Ct. 1310. Not surprisingly, the plaintiffs interpret the term “great deference” to mean that courts should still apply strict scrutiny to these cases. But interestingly, the defendants themselves interpret the term “great deference” to mean “a more deferential application of the strict scrutiny test.” See Mot. to Dismiss at 11.
In her dissent in the Goldman case, Justice O’Connor highlighted the lack of a standard in criticizing the majority on the ground that “[n]o test for free exercise claims in the military context is even articulated, much less applied. It is entirely sufficient for the Court if the military perceives a need for uniformity.” Goldman, 475 U.S. at 528, 106 S.Ct. 1310 (O’Connor, J., dissenting).21 Perhaps a future case will provide the Court with an opportunity to take Justice O’Connor’s suggestion and give the lower courts additional guidance in evaluating these claims.
2. Free Exercise Clause Claims
[3] Unfortunately, neither party differentiates between the standard of review this court should apply in Free Exercise Clause cases as opposed to Establishment Clause cases. The defendants assert that the court should employ the relaxed strict-scrutiny standard for all three of the plaintiffs’ principal claims: namely, those alleging violations of the Establishment Clause, the Free Exercise Clause, and the Equal Protection Clause. But as this court just *53 discussed in the previous section, the Supreme Court’s ruling in Goldman, a free exercise case, is inapplicable to the free exercise claims at issue here because the defendants have totally failed to articulate any reasons why the challenged policies and practices involving the hiring, promotion, and retention of chaplains relate to any important operational, strategic, or tactical objective.
[4] Accordingly, the court relies on well-settled Supreme Court precedent in free exercise cases in the non-military context to provide the appropriate legal standard. The Supreme Court has set forth a two-track approach:

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a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.... A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–32, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). In other words, in cases such as the one at bar in which the plaintiffs allege the defendants’ policies and practices are not neutral and are not of general applicability, the court should apply the strict-scrutiny test. See id. Moreover, “[a] law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.” Id. at 546, 113 S.Ct. 2217.
3. Equal Protection Clause Claims
[5] The plaintiffs argue correctly that the Fifth Amendment requires the Navy to treat non-liturgical Christian chaplains in the same manner that it treats liturgical Protestant chaplains.22 See Pls.’ Opp’n at 8 (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 231–32, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)). Notably, the equal-protection analysis in this case is very similar to the Establishment Clause and Free Exercise Clause standards of review in that, as noted above, the Supreme Court has held courts must apply strict scrutiny to any policy or practice that involves a denominational preference. See, e.g., County of Allegheny, 492 U.S. at 608–09, 109 S.Ct. 3086; Larson, 456 U.S. at 246, 102 S.Ct. 1673. Because the plaintiffs in this case have alleged that the Navy’s policies and practices do involve denominational preferences, the court will apply strict scrutiny to the plaintiffs’ equal-protection claims.
C. Statute–of–Limitations Issues
[6] Title 28 U.S.C. § 2401(a) establishes a six-year statute-of-limitations period for a plaintiff to commence a civil action against the United States after the right of action first accrues. See Mot. to Dismiss at 28 (citing 28 U.S.C. § 2401(a)). While the parties do not dispute that

section 2401(a) sets forth the applicable limitations period, they disagree about when the time period began to accrue.
In essence, the defendants assert that the proper accrual date for claims for discrimination or illegal actions taken against military personnel is when the action or *54 discharge becomes final. See Mot. to Dismiss at 29 (citing Kendall v. Army Bd. for Correction of Military Records, 996 F.2d 362, 365–66 (D.C.Cir.1993)). Accordingly, since the plaintiffs filed their complaint on March 17, 2000, the defendants insist that the statute of limitations bars any claims that accrued before March 17, 1994 and that the court should dismiss these claims for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). See Mot. to Dismiss at 29. The defendants thus maintain that the court should dismiss the claims of plaintiffs Timothy Nall and James Wiebling, who left active duty before March 17, 1994. See id. at 29–30. Moreover, the defendants contend that because the statute of limitations at issue is jurisdictional, see Kendall, 996 F.2d at 366, the court should also dismiss the claims of several other plaintiffs who do not allege when they left active-duty service or when, during service, they suffered their alleged injuries. See Mot. to Dismiss at 30.
The plaintiffs counter by contending that the defendants have engaged in a continuous violation and self-concealing fraud. See Pls.’ Opp’n at 37. The plaintiffs further argue that because the Navy fraudulently concealed crucial information that prevented them from alleging a crucial element of their claim, the “accrual” date was tolled during the period of concealment and did not begin to run until the plaintiffs first learned of the defendants’ alleged fraudulent concealment. See Pls.’ Opp’n at 36 (citing Hohri v. United States, 782 F.2d 227, 249 (D.C.Cir.1986), vacated and remanded on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987)).
[7] [8] The D.C. Circuit has made it clear that “when a defendant fraudulently conceals the basis of a plaintiff’s cause of action, the statute of limitations is tolled until the time that a reasonably diligent plaintiff could have discovered the elements of his claim.” Hohri, 782 F.2d at 246. The question in this case then becomes whether the defendants fraudulently concealed the basis of the plaintiffs’ claims. But this court need not decide the issue at this juncture. This is because the D.C. Circuit has held that “courts should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint.” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996) (citing Richards v. Mileski, 662 F.2d 65, 73 (D.C.Cir.1981)). The D.C. Circuit has also instructed that “because statute of limitations issues often depend on contested questions of fact, dismissal is appropriate only if the complaint on its face is

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conclusively time-barred.” Firestone, 76 F.3d at 1209 (citing Richards, 662 F.2d at 73).23
Finally, the plaintiffs correctly submit that they need not plead fraudulent concealment in the complaint, but rather that their obligation to do so “arises only when defendant raises the statute of limitations as a defense.” See Pls.’ Opp’n at 36 (quoting Firestone, 76 F.3d at 1210). For all these reasons, the court applies the D.C. Circuit’s well-settled precedent and concludes that a ruling on the defendants’ *55 statute-of-limitations argument would be premature. Accordingly, the court denies without prejudice the defendants’ motion to dismiss certain claims on limitations grounds and will reconsider the defendants’ argument if it is raised in a possible motion for summary judgment after the parties have conducted discovery.
D. The Defendants’ Administrative–Exhaustion Argument
[9] The defendants’ contention that the individual chaplain plaintiffs should have first exhausted their administrative remedies by raising their personnel claims with the Board for Correction of Naval Records (“BCNR”) before coming to federal court warrants little attention. See Mot. to Dismiss at 32. The defendants argue that by requiring the plaintiffs to seek their remedies first before the BCNR, an administrative body, the court could enable the Navy itself to correct any mistakes or injustices that may have occurred. See id. But the plaintiffs respond persuasively by pointing to a similar case involving the Air Force Board for the Correction of Military Records (“AFBCMR”). See Pls.’ Opp’n at 43 (citing Glines v. Wade, 586 F.2d 675, 678 (9th Cir.1978), rev’d on other grounds sub nom. Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980)). In Glines, the Ninth Circuit stated that “[t]he AFBCMR was never intended by Congress to resolve the essentially legal issues involved in this case. Like other BCMRs, it is a clemency-oriented body, with authority to ‘correct an error or remove an injustice,’ 10 U.S.C. § 1552(a), not to declare the law.” Glines, 586 F.2d at 678. Noting that the BCMRs “are not necessarily legally trained,” the court stated that the board lacked the authority to declare the challenged regulations invalid. See id.
The defendants attempt to distinguish Glines by suggesting that in that case, the plaintiff challenged the constitutionality of specific military regulations, whereas the plaintiffs at bar challenge putative “policies,” which the Navy’s BCNR is equipped to handle. See Reply at 21. This argument falls flat. In this case, the gravamen of the plaintiffs’ claims revolves around constitutional

challenges based on the First Amendment’s Establishment and Free Exercise Clauses and the Fifth Amendment’s Due Process Clause. As the Ninth Circuit held in an earlier case, “[r]esolving a claim founded solely upon a constitutional right is singularly suited to a judicial forum and clearly inappropriate to an administrative board.” Downen v. Warner, 481 F.2d 642, 643 (9th Cir.1973). The court rejects the defendants’ argument on this point.
E. The Plaintiffs’ Establishment, Free Exercise, and Equal Protection Clause Claims
As discussed supra in Section III.B., the court must apply strict scrutiny in assessing which, if any, of the plaintiffs’ various causes of action under the three major constitutional rubrics may survive the defendants’ motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Accordingly, because the legal standards are the same, the court addresses these claims together.
1. The Hiring and Retention of Navy Chaplains
[10] The plaintiffs allege that the Navy has established and maintained an unconstitutional religious quota system, which “allow[s] liturgical Protestant chaplains to maintain liturgical control of the Navy Chaplain Corps while excluding non-liturgical chaplains from influence and representation.” Compl. at 30. Charging that the thirds policy amounts to an unconstitutional establishment of liturgical Christianity, the plaintiffs decry a structure that leads to a much greater percentage of liturgical Christians in the Chaplain Corps *56 than their proportionate rate among all DON personnel.
In support of their claim, the plaintiffs provide hard statistics. Specifically, the DMDC reports indicate that liturgical Protestants comprised about 8.76 percent and 8.03 percent of all DON personnel in 1998 and 2000 respectively. See Compl. at 28 (citing Exs. 1, 2). In addition, Catholics represented 24.09 percent of all DON personnel in 1998, and 23.56 percent in 2000. See id. In contrast, members of non-liturgical faith groups represent about 50 percent of the Navy’s religious population. See id. at 28. Under the alleged thirds policy, however, Catholics and liturgical Christians combined, who constituted 32.85 percent of all DON personnel in 1998 and 31.59 percent in 2000, received two-thirds (66–67 percent) of all the Navy’s chaplain slots. See id. at 29–30.
The defendants respond somewhat feebly that the

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statistics cited by the plaintiffs are unreliable because they are based on voluntary declarations of religious affiliation made by service members when they entered the Navy. See Mot. to Dismiss at 16. Without offering a better system to identify its personnel’s religious demographics, the defendants explain that some Navy personnel may choose not to declare their religion, some may change their affiliation after filling out the form, and some may declare their affiliation but not attend worship services or use the ministry resources of the chaplains. See id. The Navy also notes that there is far greater turnover among Navy personnel than there is in the Chaplain Corps, making it more difficult to determine religious affiliation among all service members. See id. n. 9. Moreover, the defendants contend that if they tried to collect more precise data on the religious affiliation of their personnel, this would entail significant interference by the Navy into its personnel’s free exercise and privacy rights that “would constitute inappropriate entanglement by the government into the worship and beliefs of Navy personnel.” See id. Without engaging in an extended colloquy on this point, suffice it to say that this court views the defendants’ argument as rather far-fetched. For example, to obtain more information about its personnel, the Navy could circulate a voluntary biographical form once per year, and the form could be submitted anonymously to avoid any infringement on a service member’s privacy rights.
But the more important point is that the defendants, in proffering their various protestations to the plaintiffs’ statistics, seem to have forgotten a fundamental procedural mantra that this court must follow. That is, in ruling on a motion to dismiss, the court must accept the plaintiffs’ well-pled factual allegations as true and draw all reasonable inferences in the plaintiffs’ favor. See Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. In this case, the court determines that the statistics the plaintiffs cite are indeed well-pled factual allegations. Rather than being concocted by the plaintiffs, the statistics about the Navy’s religious demographics—taken at two separate points in time—come from an independent third party. And taken in conjunction with their allegations about the thirds policy, the plaintiffs have properly asserted that the Navy intentionally24 *57 hires liturgical Protestant chaplains dramatically out of proportion from their overall representation among DON personnel.
Similarly, in terms of the defendants’ retention policies, the plaintiffs clearly offer well-pled factual allegations that the Navy institutes “a deliberate, systematic, discriminatory” retention policy “whose purpose was to keep non-liturgical chaplains from continuing on active duty, thus ensuring they would not be considered for promotion and minimizing their future influence.” Compl. at 31. To pursue this alleged objective, the defendants

would retain liturgical Protestant chaplains beyond their initial three-year tour of service and at a significantly higher rate than their representation among all DON personnel. See id. at 31–32.
Applying the legal standard to the facts of this case, the court holds that the plaintiffs have stated a claim that the defendants’ policies and practices relating to the hiring and retention of chaplains violate the Establishment Clause of the First Amendment. Underscoring its unwavering adherence to the “principle of denominational neutrality,” see Larson, 456 U.S. at 246, 102 S.Ct. 1673, the Supreme Court declared that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Id. at 244, 102 S.Ct. 1673. This is precisely what the plaintiffs in this case allege that the Navy has done.
At times, reading the attorneys’ briefs in this case is like attending a debate in which the participants have shown up in two different rooms. While the lawyers have clearly put significant time, energy, and thoughtfulness into their briefs, they sometimes fail to directly address the other party’s key point. For example, the plaintiffs ask the court for an order requiring the Navy to bring its Chaplain Corps, including its current rank structure, in line with the Navy’s religious demographics. See Compl. at 59. But the defendants use this fact to launch a misconstruction of the plaintiffs’ argument, interpreting it to mean that in order to pass constitutional muster, the Navy Chaplain Corps “must be organized along the denominational breakdown that matches the proportional presence of faith groups in the overall Navy population ....” See Mot. to Dismiss at 8. While the plaintiffs would approve of a proportional-representation scheme and, indeed, essentially ask for such an approach, nowhere do they insist that this is the only constitutional option. Rather, the plaintiffs’ main point is that the defendants’ current system for hiring and retaining chaplains is unconstitutional.
As discussed at length in Section III.B. supra, this case requires the court to apply a strict-scrutiny test to practices suggesting a denominational preference. See *58 County of Allegheny, 492 U.S. at 608–09, 109 S.Ct. 3086. Consequently, the governmental policy or practice “must be invalidated unless it is justified by a compelling governmental interest, and unless it is closely fitted to further that interest ....” Larson, 456 U.S. at 247, 102 S.Ct. 1673 (internal citations omitted).
Instead of articulating how its policies and practices regarding the Chaplain Corps are justified by a compelling governmental interest and how its policies and practices are closely fitted to further that interest, the

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defendants spend much of their time telling the court what is wrong with a proportional-representation system. The parties agree that “the Chaplain Corps exists to serve a compelling governmental interest providing for the free exercise needs of the [DON personnel].” Pls.’ Opp’n at 13; Mot. to Dismiss at 12. But the plaintiffs question how the Navy accomplishes its compelling government interest by:

a) its over-representation of

chaplains of the Protestant

Liturgical faith groups whose

members represent about 8% of the

Navy and b) its consequent under

representation

[sic]

of

non-liturgical chaplains whose

members represent the majority of

the Navy’s religious needs. The

Navy has not explained how it

determines its chaplain allocations

among faith groups and why 8% of

the Navy’s religious population

receives [more than four times that

percentage] of the Chaplain

authorizations.

Pls.’ Opp’n at 13. In short, the plaintiffs challenge both prongs of the strict-scrutiny test, disputing how the Navy’s policies and practices justify its compelling governmental objective of meeting the free-exercise needs of DON personnel and how these policies and practices are narrowly tailored to accomplish that objective. See id. at 15. The defendants respond that their decision not to adopt a proportional-representation policy passes the strict-scrutiny test as applied to the unique context of the military. See Mot. to Dismiss at 19. But as discussed in section III.B.1.b supra, a relaxed strict-scrutiny test does not apply to these facts.

Another misreading of the plaintiffs’ argument appears in the defendants’ effort to make a point about the compelling interest of meeting their personnel’s ability to practice their religion. The defendants urge that they must ensure that the Chaplain Corps includes a broad spectrum of religious faiths:

To guarantee such diversity of religious denominations in the Chaplains [sic] Corps—and thereby maintain a capacity to serve a broad segment of faiths—it is permissible for the Navy to take into account the denomination of chaplains in order to regulate the faith group composition with the Corps. Only by considering an individual

chaplain’s faith group can the Chaplain Corps effectively structure itself to meet the free exercise needs of the Navy and serve its vital support role in the Navy’s mission. Indeed, there is no other practicable way to insure that the Chaplain Corps will have a diverse and sufficient supply of chaplains from various faiths without taking denomination into account in filling its staffing needs.
Mot. to Dismiss at 13. Unfortunately, the defendants confuse two of the plaintiffs’ arguments. While the plaintiffs do challenge the Navy’s policy of identifying the religious denomination of a chaplain being considered for promotion, see infra Section III.E.2, the plaintiffs never argue with the notion that the Navy must consider religious affiliation in making its hiring decisions. Indeed, the plaintiffs’ request for a proportional-representation system in the Chaplain Corps that would mirror the religious demographics of all DON personnel *59 necessarily contemplates taking faith into account in hiring decisions. See Compl. at 59.
Moreover, the defendants seem to forget that at this early stage in litigation, the crucial inquiry is not whether a proportional representation scheme is practicable or mandated by the Constitution, but whether the plaintiffs have stated a claim that the defendants’ hiring and retention policies violate the Establishment Clause.25 See FED. R. CIV. P. 12(b)(6); Scheuer, 416 U.S. at 236, 94 S.Ct. 1683 (“When a federal court reviews the sufficiency of a complaint ... [t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.”). In their attempt to do so, the plaintiffs stress that the policies and practices challenged here are unique to the Navy, and that the other branches of the Armed Forces, the Army and the Air Force, “meet their obligations to provide for the religious free exercise needs of their service members under the same general service constraints which the Navy argues require it to ignore the Constitution.” Pls.’ Opp’n at 2. In brief, the plaintiffs assert that although the First Amendment does not contain the words “proportional representation,” it does mandate neutrality among faith groups. See id. at 13. Arguing that the thirds policy amounts to a “religious gerrymander,” the plaintiffs charge that the Navy does not explain how its subjective allocation of chaplains between faith groups is neutral. See id. at 12–13. “When compared to its religious demographics, the Navy’s allocation of chaplains conveys a message of preference.” Id. at 14.
The court holds that the plaintiffs have stated a claim that

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the defendants’ policies and practices relating to the hiring and retention of its chaplains are not justified by a compelling governmental objective and are not narrowly tailored to accomplish that objective. Accordingly, the plaintiffs have successfully stated a claim that these policies and practices violate the strict-scrutiny test and that they violate the Establishment Clause. The court thus denies the defendants’ motion to dismiss these claims.
2. The Navy’s Promotion of Chaplains26
The plaintiffs challenge several of the defendants’ policies and practices relating to chaplain promotion boards. For the *60 reasons that follow, the court grants in part and denies in part the defendants’ motion to dismiss these causes of action for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Specifically, the court grants the defendants’ motion to dismiss the plaintiffs’ claims that chaplains should not rate other chaplains and that more than one chaplain should not sit on a chaplain promotion board. On the other hand, the court denies the defendants’ motion to dismiss the plaintiffs’ claim that a chaplain’s religious affiliation should not be identified to a chaplain promotion board.
a. The Composition of Chaplain Promotion Boards
Responding to the plaintiffs, the defendants argue that as duly appointed Naval officers, chaplains, as with any of the other staff-corps officers, “legitimately participate in the normal course of duties for officers, including sitting on appropriate promotion boards and rating the performance of junior officers. These actions do not run afoul of the Establishment Clause.” Mot. to Dismiss at 20. The defendants also take issue with the plaintiffs’ claim that placing more than one chaplain on a promotion board discriminates on the basis of religious faith. See id. The court agrees that the plaintiffs have failed to state a claim on both points.
i. Allowing Chaplains to Rate Other Chaplains
[11] First, the court holds that the practice of allowing chaplains to rate other chaplains for promotions does not state a violation of the Establishment Clause. Pressing their argument on this point, the plaintiffs claim that unlike the Army and Air Force, which use selection boards comprised of officers from other branches to select

chaplains for promotion, chaplains dominate the Navy’s chaplain promotion boards. See Compl. at 37. The plaintiffs argue that this practice constitutes a First Amendment violation because “[t]he opportunity for mischief is to [sic] great.” See Pls.’ Opp’n at 32. Essentially, the plaintiffs ask the court to believe 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. The court refuses to accept that assumption.
Well-settled case law instructs courts to presume that government officials will conduct themselves properly. As this court has said, “government officials are presumed to act in good faith.... [p]laintiff must present ‘well-nigh irrefragable proof’ of bad faith or bias on the part of governmental officials in order to overcome this presumption.” China Trade Center, L.L.C. v. Washington Metro. Area Transit Auth., 34 F.Supp.2d 67, 70–71 (D.D.C.1999), aff’d, No. 99–7029, 1999 WL 615078 (D.C.Cir.1999) (per curiam) (stating that decisions of governmental officials “are entitled to a presumption of validity”); see also Chaplaincy of Full Gospel Churches v. Danzig, Dkt. No. 99–2945, Mem. Op. and Order dated February 14, 2000 at 4 (D.D.C.2000) (Green, J.).
In addition, the plaintiffs’ argument on this point is highly speculative. The defendants underscore this weakness by noting that merely because an official could possibly use his or her authority to impermissibly infringe on religious liberty cannot state a violation of the First Amendment. See Reply at 8. “Only if an official in fact acts to infringe religious liberty in an unconstitutional manner is there a First Amendment violation that the courts can take cognizance of and, generally, remedy.” Id. As it stands now, the plaintiffs would have great difficulty in demonstrating that they have suffered the injury-in-fact necessary to have standing to bring such a claim. See Lujan v. Defenders of *61 Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In sum, the defendants correctly maintain that the plaintiffs’ assertion that chaplains will necessarily discriminate against other chaplains on the basis of religion is an unsupported allegation that is not sufficient to state a claim for a First Amendment violation.
Another persuasive reason to allow chaplains to rate other chaplains is that the Chaplain Corps fulfills a unique mission within the Navy that requires it to perform duties significantly different from those of Naval line officers and Naval officers in other staff corps. “Consequently, officers in the Chaplain Corps are much better qualified by reason of their knowledge and experience to review and analyze the performance of other chaplains in fulfilling their duties within the Corps.” Mot. to Dismiss at 21. As this court has observed:

183 F.Supp.2d 31

Staff corps promotion boards have been traditionally composed of officers who are members of the same staff corps. In this manner, doctors consider doctors, judge advocates consider judge advocates and so on. The logic is apparent. Those in the same profession are more qualified to evaluate others in their profession. It is neither likely that a doctor would know how to evaluate a chaplain, nor vice versa.
Emory v. Secretary of the Navy, 708 F.Supp. 1335, 1339 (D.D.C.1989) (Green, J.) (internal citations omitted). The court agrees with this line of reasoning and grants the defendants’ motion to dismiss the plaintiffs’ claim that chaplains should not rate other chaplains.
ii. Having More than One Chaplain on a Chaplain Promotion Board
[12] The plaintiffs’ second attack on chaplain promotion boards centers on their claim that having more than one chaplain on a board would provide an opportunity for religious bias because selection boards will inherently discriminate among religious denominations based on their own preferences. See Mot. to Dismiss at 21 n. 14. For substantially the same reasons as those articulated in the previous section, the court determines that the plaintiffs have failed to state a claim that this practice violates the First Amendment.
Title 10 U.S.C. § 612 states that a Navy chaplain selection board shall consist of five or more officers who are on the Navy’s active-duty list. See 10 U.S.C. § 612(a)(1). In this case, the plaintiffs never explain why having one chaplain on a promotion board is constitutional, but having more than one chaplain is unconstitutional. Can a chaplain somehow restrain herself from discriminating on the basis of religious affiliation if she is the only chaplain on a board but not hold back from making biased decisions if other chaplains sit on the board? This argument defies common sense.
Finally, the plaintiffs’ contention that having chaplains rate other chaplains delegates a religious function to the governmental body is unfounded. All chaplains, including the Chief of Chaplains, are officers. See 10 U.S.C. § 5142. “The Chief of Chaplains shall be appointed by the President, by and with the advice and consent of the Senate, from officers of the Chaplain Corps in the grade of commander or above who are serving on active duty

and who have served on active duty in the Chaplain Corps for at least eight years.” Id. Furthermore, the defendants properly distinguish the authority the plaintiffs rely on, Larkin v. Grendel’s Den, in which a zoning law effectively gave private churches veto power on the granting of liquor licenses within 500 feet of their church building, by noting that chaplains are Naval officers, not private clergy. See *62 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982). “As officers, it is appropriate for [chaplains] to undertake the duties routinely performed by Naval officers, including serving on promotion boards.” Mot. to Dismiss at 23. The fact remains, Navy chaplains are first and foremost Naval officers. And when chaplains sit on promotion boards, they act as officers who are evaluating a fellow officer’s fitness for promotion.
Nothing in the Establishment Clause can be read to mean that the Constitution prevents all chaplains from making any governmental decision, such as whether to promote another officer. Accordingly, the court concludes that the plaintiffs have failed to state a claim on either of their challenges to the composition of chaplain promotion boards.
b. Identifying the Religious Denomination of a Chaplain–Promotion Candidate
[13] The plaintiffs fare much better, however, when advancing their argument that an individual chaplain’s religious affiliation should not be identified to members of a chaplain promotion board by having each promotion candidate’s three-digit “faith-group identifier” code prominently displayed throughout the promotion-board process. See Compl. at 37. “This procedure has no other purpose than to identify the candidate’s faith group to the board and thereby create a suspect religious category unrelated to any legitimate Navy objective.” Id. Despite the defendants’ argument that the plaintiffs have failed to state a constitutional claim on this issue, the court deems this argument persuasive. Although they perform religious functions, chaplains should be selected for promotions based on their fitness as officers and as chaplains, rather than the religious message of their sermons.
The plaintiffs also insist that the Fifth Amendment requires that all chaplains be given an equal and fair opportunity for promotion. See Pls.’ Opp’n at 10. The court agrees that the Navy may not use religious prejudice to set quotas that are unrelated to a compelling governmental interest. See Adarand, 515 U.S. at 231–32, 115 S.Ct. 2097; Larson, 456 U.S. at 242, 246, 102 S.Ct. 1673. In support of their claim that the Navy

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disproportionately promotes liturgical Protestant chaplains to the upper ranks of the Chaplain Corps, the plaintiffs point to the Ellis Report, an internal 1995 memorandum from the Marine Corps Chaplain to the Navy’s Chief of Chaplains. In the 15 years preceding the report, 119 incumbents held key billets in the Chaplain Corps, only 14 of which, or 11.8 percent, “have been clearly non-liturgical.” See Compl., Ex. 4. In contrast, Roman Catholics filled 33.6 percent of the billets, while liturgical Christians filled 53.8 percent. See id. These statistics led Chaplain Ellis to make the following statements:
the conclusions to be drawn are so clear as to make any such discrepancies inconsequential. There is no suggestion that this pattern was deliberate. However the institutional bias is very clear.
... the relative frequency of assignment of liturgicals to key decision making billets is disconcerting.... Why is this important? First, it is an issue of justice. Secondly, the ability of the chief of chaplains to proclaim a vision that will be followed requires a sense of trust in the fairness of his administration of the affairs of the Corps. Thirdly, the Ecclesiastical Endorsers from the non-liturgical Churches, while not organized, are increasingly disenchanted with what they believe to be the unfair treatment of their chaplains. Fourthly, and perhaps most importantly, when only one perspective is reinforced to decision makers, *63 and even those few non-liturgicals who are given key billets are there because they have been able to be non-confrontive [sic], the strength of diversity, which we tout to be so important, is unable to be realized. The thrust of the Chaplain Corps policies is thus skewed by incomplete perspective; perspective that perhaps could be supplied by the silent, in terms of position and influence, non-liturgicals.
Compl., Ex. 4.
The defendants articulate no compelling governmental objective for listing a promotion candidate’s religious affiliation. The court therefore concludes that the plaintiffs have stated a Fifth Amendment equal-protection claim that identifying a candidate’s religious affiliation to the chaplain promotion board violates strict scrutiny and thus denies the defendants’ motion to dismiss this claim.27
3. Implementing a Liturgical Protestant “General Service”
The plaintiffs allege that the Navy’s policy of having only a “general Protestant” service and restricting other forms

of non-liturgical religious services violates both the First Amendment’s Establishment Clause and the Free Exercise Clause. See Compl. at 35. They claim that the defendants have tried to establish a de facto liturgical religion for its personnel, thereby limiting the opportunity for non-liturgical Navy personnel to meet their religious needs. See id. In addition, the non-liturgical Christian chaplains assert that by mandating a liturgical “general Protestant” service, the Navy has tried to shape all Protestant servicemen and women “into a single liturgical worship mold while ignoring or actively hindering the religious needs of non-liturgical personnel.” Id. The Navy has allegedly done this by denying or restricting non-liturgical Christian chaplains’ access to Navy facilities to conduct services, by removing non-liturgical chaplains from preaching or conducting religious services and by opposing non-liturgical Christian worship alternatives. See id.
[14] Turning first to the plaintiffs’ Free Exercise Clause claims, the court rules that the plaintiffs have standing only to challenge the Navy’s policies and practices on behalf of the current and former non-liturgical Christian chaplain plaintiffs themselves (and possibly, a class of similarly situated current and former non-liturgical chaplains, if the court approves the anticipated motion for class certification). The defendants correctly point out that the plaintiffs do not have standing to bring a claim that the Navy has violated the rights of DON personnel to the free exercise of religion. See Mot. to Dismiss at 27 n. 16. As the Supreme Court has held, “[i]n the ordinary course, a litigant *64 must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). The court has allowed litigants to bring actions on behalf of third parties only when the litigant has met three important criteria: (1) the litigant must have suffered an “injury in fact”; (2) the litigant must have a close relation to the third party; and (3) “there must exist some hindrance to the third party’s ability to protect his or her own interests.” See id. at 410–11, 111 S.Ct. 1364. Even assuming arguendo that the plaintiffs in this case could meet the first two criteria, they cannot meet the third since there is no reason why DON service members who feel that a general Protestant service violates their right to the free exercise of religion cannot bring their own lawsuit. Accordingly, to the extent that any of the plaintiffs’ claims can be construed as a challenge brought by DON personnel, the court concludes that the plaintiffs lack standing to bring these claims on behalf of these third parties and grants the defendants’ motion to dismiss these claims.
[15] Conversely, the plaintiffs’ claim that a general Protestant service violates the Establishment Clause

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survives the defendants’ motion to dismiss. The defendants justify the alleged policy of having a general Protestant service by noting that because of the broad range of faiths of Navy personnel and the limited number of chaplains, the Chaplain Corps must structure its provision of worship services to fulfill the religious needs of as many DON personnel as possible. See Mot. to Dismiss at 25. Accordingly, the defendants note that “these resource constraints will often if not always make it impossible to hold a worship service at Naval facilities for each serviceperson’s particular faith ....” Id.
The court is well aware that the Navy has limited resources and a limited number of chaplains to assign to its various installations across the globe. And the court understands the defendants’ stated objective in adopting a utilitarian approach, whereby the Navy uses its limited chaplain resources to try to accommodate a religious fit for as many of its personnel as possible. The plaintiffs’ concern, however, is that these allegedly general Protestant services might too often reflect a liturgical Christian service, rather than offering a variety of services (and even if the Navy cannot offer a variety of services at one particular base, it might at least be able to do so at a worldwide level). This point carries significant weight in the court’s view.
The plaintiffs charge that by offering a general Protestant service with a heavy dose of liturgical Christianity, the Navy has unconstitutionally communicated a message of endorsement for a specific religious tradition, in violation of the Establishment Clause. See Pls.’ Opp’n at 33. The plaintiffs agree with the defendants’ stated goal that the Navy must utilize its limited resources to provide opportunities “that are acceptable to a broader segment of adherents than merely one denomination,” but they properly point out that the defendants nowhere “explain how mandating a worship service that appeals to a tradition representing only 8% of the Navy somehow appeals to the broader segment made up of non-liturgicals.” Pls.’ Opp’n at 34.
The defendants respond by once again arguing that courts should defer to the military’s “professional judgment” in these matters. See Mot. to Dismiss at 27. But as the court made clear in Section III.B., the strict-scrutiny standard applies to this *65 case and the question thus becomes whether the Navy’s alleged policy of having a default general Protestant service with a liturgical Christian slant “is justified by a compelling governmental interest” and “is closely fitted to further that interest.” See Larson, 456 U.S. at 246–47, 102 S.Ct. 1673. The court rules that the plaintiffs have stated a claim that this alleged policy is not justified by a compelling governmental interest and, even if it were, is not closely fitted to further that interest. The court therefore denies the defendants’ motion to dismiss

this count.28
4. Free Exercise Claims and Religious Speech
There is considerable overlap between the plaintiffs’ Establishment Clause claims, Equal Protection Clause claims, and Free Exercise Clause claims. The overriding theme that runs through all the claims relating to the plaintiffs’ free exercise of their religion is that the Navy has adopted and implemented policies and practices that effectively silence non-liturgical Christian chaplains.
[16] These claims include: identifying a chaplain-promotion candidate’s religion to the chaplain promotion board; forcing non-liturgical churches off base into “substandard facilities which were inadequate to hold the number of those wanting to attend, while Catholic and liturgical Protestants enjoyed spacious on post facilities”, Compl. at 36; senior Catholic and liturgical Protestant chaplains intentionally giving some non-liturgical Christian chaplains lower performance ratings than similarly situated Catholic and liturgical Protestant chaplains “solely on the basis of their religious identification and beliefs despite evidence of the non liturgical chaplains’ superior performance”, see id. at 46; requiring non-liturgical Christian chaplains to officiate at liturgical Protestant services, but not requiring liturgical Protestant chaplains to officiate at non-liturgical services, see id.; implementing a two-tiered system of discipline, whereby liturgical members receive lighter punishments for similar offenses than non-liturgical chaplains, see id. at 47; providing career-planning information to liturgical Christian chaplains but not to non-liturgical Christian chaplains, see id.; and limiting the ability of non-liturgical Christian chaplains to meet their community’s religious needs since “non-liturgical chaplains must expend more effort to meet the needs of their faith group members than is required by liturgical Protestant chaplains.” Id.
In all these allegations, the plaintiffs charge that because the Navy treats non-liturgical Christian chaplains less favorably, the defendants’ policies and practices serve to impair or impede the plaintiffs’ free exercise of religion. Because the plaintiffs have stated a claim that these policies and practices do not pass the strict-scrutiny test, these allegations survive the defendants’ motion to dismiss.
Finally, the plaintiffs plead that the Navy’s policies and practices amount to an unconstitutional abridgement of religious speech with a specific viewpoint, i.e., non- *66 liturgical, evangelical, and low-church. See Compl. at 42. Specifically, the plaintiffs assert that senior officials in the

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Chaplain Corps have criticized and berated non-liturgical chaplains “for preaching and teaching on truths of the Christian faith and their specific religious tradition.” See id. at 35. In another instance, a senior liturgical Christian chaplain allegedly disciplined a non-liturgical chaplain for ending his prayers by saying “in Jesus [sic] name.” See id. at 6.
The defendants counter that any actions they have taken were done solely to try to maximize limited resources to provide for the ministry needs of the Navy. See Mot. to Dismiss at 3. In addition, the defendants rely heavily on a Seventh Circuit opinion, holding that a government-hospital chaplain “has no absolute constitutional right to conduct religious services and offer religious counsel in a government institution ....” Baz v. Walters, 782 F.2d 701, 708 (7th Cir.1986). Without addressing what specific restrictions the Navy may impose on the speech of its chaplains, the court notes that the Baz case is largely inapplicable to the case at bar. In that case, the Seventh Circuit affirmed the district court’s finding that Reverend Franklin Baz, formerly a chaplain of the United States Veterans Administration (“VA”) who worked at a hospital containing many psychiatric patients, had serious “difficulty in the discharge of his duties.” See id. at 703. Among other things, Reverend Baz accepted honoraria for conducting funerals and borrowed money from patients to buy gasoline, both in violation of VA regulations, and, most significantly, continuously tried to proselytize his patients, also in violation of VA regulations. See id.
Citing the Supreme Court’s declaration that when a government employee asserts that the government has infringed his constitutional rights, the court must strike a balance between the employee’s interests as a citizen and “the interest of the [government] as an employer, in promoting the efficiency of the public services it performs through its employees,” see Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Seventh Circuit affirmed the district court’s judgment for the defendants. See Baz, 782 F.2d at 709. The most notable difference between Baz and the case at bar is that in the latter, the defendants do not argue that the plaintiffs have, for example, violated any Navy regulations, committed any type of misconduct, or tried to proselytize or do anything else improper in conducting their worship services. While both Baz and Pickering can be read for the proposition that the government may place some time, place, and manner restrictions on the speech of government-employed chaplains, this court need not decide what the boundaries of those limitations should be in this case at this juncture.
The issue of what restrictions the Navy may place on the content of its chaplains’ speech is a fascinating one,

standing at the intersection of four major jurisprudential roads—free speech, free exercise, establishment, and equal protection. One readily apparent point is that the Constitution prevents the Navy from regulating the religious speech of non-liturgical Christian chaplains but not that of liturgical Christian or Catholic chaplains. Such conduct would communicate a message that some religious speech is favored over others, a message that some chaplains are not allowed to conduct their worship services as freely as others, a message that the Navy does not treat its chaplains of different faiths in an equitable matter and a message that the Navy endorses a specific religion. Since this is precisely what the plaintiffs allege that the Navy has done in this case, the plaintiffs have stated a claim *67 that the Navy’s alleged policies and practices in this regard do not survive strict scrutiny and would violate the plaintiffs’ freedom of speech, right to the free exercise of their religion, right to equal protection, and the Establishment Clause.29
F. Individual Plaintiffs’ Claim for Constructive Discharge
[17] In their motion to dismiss, the defendants maintain that certain named plaintiffs fail to establish a prima-facie case of constructive discharge in the complaint. See Mot. to Dismiss at 33. To establish a claim for constructive discharge, the plaintiffs must not only show discrimination but also that the employer deliberately made work conditions intolerable, leading the employee to quit involuntarily. See id. at 33 (citing Katradis v. Dav-El of Washington, D.C., 846 F.2d 1482, 1485 (D.C.Cir.1988)). The defendants note that the plaintiffs must allege both “discrimination and the existence of certain ‘aggravating factors.’ ” See id. at 34 (quoting Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1558 (D.C.Cir.1997)).
While the defendants are correct on the substantive law, they are wrong on the civil procedure. As the D.C. Circuit held in the very significant case, Sparrow v. United Air Lines, Inc., “a plaintiff need not set forth the elements of a prima facie case at the initial pleading stage.” 216 F.3d 1111, 1113 (D.C.Cir.2000). Accordingly, the plaintiffs at bar have no obligation to lay out a prima-facie case of constructive discharge in their complaint. The court therefore denies the defendants’ motion on this point.
G. The Court Orders Additional Briefing on Several Claims

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The court will order further briefing on several of the plaintiffs’ claims that the parties’ briefs do not sufficiently address. The defendants shall file a supplemental motion to dismiss, if they so choose, laying out their position on the following issues: the plaintiffs’ claim of illegal retaliation, as set forth in Count 11; the plaintiffs’ claim of a violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq.; and the plaintiffs’ claim concerning the Chief of Chaplains’ role in the chaplain-promotion process, as discussed on pages 37–38 (¶¶ 46–49) of the amended complaint. The defendants do not address this last claim or the retaliation claim in their motion to dismiss or in their reply and only address the RFRA claim in a footnote. See Mot. to Dismiss at 20 n. 13.30
H. Additional Motions
In addition to the defendants’ motion to dismiss, the parties have filed other motions. Because the court has now resolved the defendants’ motion to dismiss, the court denies as moot the defendants’ motion to hold the proceedings in abeyance until the court resolves the motion to dismiss. As noted in the court’s order dated September 28, 2001, the court denies without prejudice the plaintiffs’ motion for partial *68 summary judgment that was filed as part of the plaintiffs’ opposition to the defendants’ motion to dismiss. See Order dated September 28, 2001. The court agrees with the defendants that they should be entitled to have a full briefing period on the plaintiffs’ motion. Accordingly, the schedule laid out in the court’s September 28, 2001 order now controls briefing on both of the plaintiffs’ motions for partial summary judgment. See id.
Lastly, the court denies without prejudice the plaintiffs’ motion to allow a chaplain plaintiff to proceed with the litigation using a pseudonym. The plaintiffs have indicated that if any part of the complaint survives the motion to dismiss, they will file a motion for class certification, which would moot the need for the plaintiffs to pursue their motion to allow a plaintiff to use a pseudonym. Accordingly, if the court denies the anticipated motion for class certification, the court will grant the plaintiffs leave to refile their motion to allow a plaintiff to use a pseudonym.
IV. CONCLUSION
For all these reasons, the court denies in part and grants in part the defendants’ motion to dismiss. In addition, the

court denies as moot the defendants’ motion to hold the proceedings in abeyance, denies without prejudice the plaintiffs’ motion for partial summary judgment, and denies without prejudice the plaintiffs’ motion to allow a chaplain plaintiff to use a pseudonym. An order directing the parties in a fashion consistent with this Memorandum Opinion is separately and contemporaneously issued this ______ day of January, 2002.
ORDER
DENYING IN PART AND GRANTING IN PART THE DEFENDANTS’ MOTION TO DISMISS; DENYING AS MOOT THE DEFENDANTS’ MOTION TO HOLD THE PROCEEDINGS IN
ABEYANCE; DENYING WITHOUT PREJUDICE THE PLAINTIFFS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT; DENYING WITHOUT PREJUDICE THE PLAINTIFFS’ MOTION TO ALLOW A CHAPLAIN PLAINTIFF TO USE A PSEUDONYM
For the reasons stated in this court’s Memorandum Opinion separately and contemporaneously issued this 10th day of January, 2002, it is hereby
ORDERED that the defendants’ motion to dismiss the plaintiffs’ claims involving the hiring and retention of chaplains is DENIED; and it is
FURTHER ORDERED that the defendants’ motion to dismiss the plaintiffs’ claims relating to the Navy’s promotion of chaplains is DENIED in part and GRANTED in part; and it is
ORDERED that the defendants’ motion to dismiss the plaintiffs’ claim involving the Navy’s alleged implementation of a liturgical Protestant “general service” is DENIED; and it is
FURTHER ORDERED that the defendants’ motion to dismiss the plaintiffs’ claims relating to the plaintiffs’ religious speech and the free exercise of their religion is DENIED1; and it is
ORDERED that the defendants’ motion to dismiss the plaintiffs’ claim for constructive discharge is DENIED; and it is
FURTHER ORDERED that the parties shall further brief several of the plaintiffs’ claims that the briefs do not sufficiently address. Specifically, the defendants *69 shall

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file a supplemental motion to dismiss, if they so choose, laying out their position on the following issues: the plaintiffs’ claim of illegal retaliation, as set forth in Count 11; the plaintiffs’ claim of a violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq.; and the plaintiffs’ claim concerning the Chief of Chaplains’ role in the chaplain-promotion process, as discussed on pages 37–38 (¶¶ 46–49) of the amended complaint. The defendants’ motion addressing all these issues shall be filed within 30 days from the date the court issues this Memorandum Opinion and Order and shall not exceed 10 pages, the plaintiffs’ opposition shall be filed within 30 days from the filing date of the defendants’ submission and shall not exceed 10 pages, and the defendants’ reply shall be filed within 15 days from the previous filing date and shall not exceed seven pages.
In addition, it is

ORDERED that the defendants’ motion to hold the proceedings in abeyance until the court resolves the motion to dismiss is DENIED as moot; and it is
FURTHER ORDERED that the plaintiffs’ motion for partial summary judgment is DENIED without prejudice2; and it is
ORDERED that the plaintiffs’ motion to allow a chaplain plaintiff to use a pseudonym is DENIED without prejudice.
SO ORDERED.3

 
 193 F.Supp.2d 196 (2002)
Robert H. ADAIR et al., Plaintiffs, v.
Gordon R. ENGLAND, Secretary of the Navy, et al., Defendants. Chaplaincy of Full Gospel Churches et al., Plaintiffs, v.
Gordon R. England, Secretary of the Navy, et al., Defendants.
Nos. CIV.A.00-0566(RMU), CIV.A.99-2945(RMU).
United States District Court, District of Columbia.
March 29, 2002.
197*197 Arthur A. Schulcz, Sr., Vienna, VA, Counsel for the Plaintiffs.
Thomas E. Caballero, U.S. Department of Justice, Washington, DC, Counsel for the Defendants.
MEMORANDUM OPINION
URBINA, District Judge.
DENYING WITHOUT PREJUDICE THE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION TO RESTORE THE STATUS QUO
I. INTRODUCTION
These cases come before the court on the plaintiffs' motion for a preliminary injunction to prevent the government from either censoring or compelling their speech by requiring them to recruit new members to the Navy's Chaplain Corps. The plaintiffs, current and former Navy chaplains and an ecclesiastical endorsing agency for military chaplains, bring these suits alleging that the Navy's policies and practices favor one religion over another in violation of the First Amendment's Establishment and Free Exercise Clauses, and in violation of the Fifth Amendment's Equal Protection Clause. Specifically, the plaintiffs charge that the hiring, retention, and promotion policies of the Navy Chaplain Corps demonstrate an unconstitutional endorsement of liturgical Christian sects over non-liturgical Christian sects.[1]
198*198 This matter now comes before the court on the plaintiffs' motion for a preliminary injunction to prevent the Navy from requiring the plaintiffs to recruit religious leaders from the public at large into the Navy's Chaplain Corps. The court concludes that it currently lacks jurisdiction over the claims that the plaintiffs set forth in their motion for a preliminary injunction since neither complaint

includes these allegations. Accordingly, the court denies the plaintiffs' motion without prejudice. The court will give the plaintiffs 30 days from the date of this Memorandum Opinion to supplement their complaints pursuant to Federal Rule of Civil Procedure 15(d), and will grant the plaintiffs leave to refile this motion at a later date, if they so choose, once the claims are part of the case.
II. BACKGROUND
Although the above-captioned cases are not consolidated for all purposes, they have been consolidated for purposes of all pretrial pending motions.[2] In the Chaplaincycase, the plaintiffs are an endorsing agency for military chaplains and seven of its individual members. In the Adair case, the plaintiffs are 17 current and former non-liturgical chaplains in the Department of the Navy ("the defendants," "Navy," or "DON"). In both cases, the plaintiffs allege that the Navy has established and maintained an unconstitutional religious quota system for promotion, assignments, and retention of Navy chaplains, in violation of both the Establishment Clause and the Free Exercise Clause of the First Amendment, and the Equal Protection Clause of the Fifth Amendment. Specifically, the plaintiffs allege that the Navy's policies and practices favor liturgical Christian chaplains over nonliturgical Christian chaplains.[3]
On January 10, 2002, the court issued a Memorandum Opinion granting in part and denying in part the defendants' motion to dismiss. See Adair v. England, 183 F.Supp.2d 31, 2002 WL 27293 (D.D.C. Jan.10, 2002). The court held that strict scrutiny applies to the plaintiffs' First Amendment and equal protection claims, that the plaintiffs did not need to exhaust their administrative remedies before filing suit in federal court, that the plaintiffs had stated a claim that the Navy's hiring and retention policies violate the Establishment Clause, that the Navy's practices of allowing chaplains to rate other chaplains for promotions and of allowing multiple chaplains to serve on promotion boards do not violate the Establishment Clause, that the plaintiffs had stated a claim that the Navy's practice of displaying the religious identity of chaplains up for promotion violates the Establishment Clause and Free Exercise Clause, that the Navy's practice of having only "General Protestant" religious services could violate the Establishment 199*199Clause, and that the plaintiffs had stated a free speech claim. See id.
In March 2001, top officials directed all chaplains "to personally and actively support chaplain recruiting efforts." Mot. for Prelim. Inj. at 4 (citing Exs. 2 (Letter from Chief of Chaplains Black dated March 30, 2001), 3 (Memorandum from Deputy Chief of Chaplains Iasiello dated March 2001)). According to the plaintiffs, top-level Navy Chaplain Corps officials instructed chaplains that a failure to actively recruit "will be noted in fitness reports and chaplain recruiting support will be a criteria for promotion board consideration." Id.
The plaintiffs filed a motion for a preliminary injunction asking the court to stop the implementation of the Navy's new directives. The plaintiffs contend that the new directives require them to speak

positively about the Chaplain Corps or to refrain from making negative comments about the Chaplain Corps. See Mot. for Prelim. Inj. at 1.
From the plaintiffs' perspective, the new policies force them to be dishonest and place them in an untenable position. See id. at 4. On the one hand, the plaintiffs note that they are actively pursuing this litigation, which includes public, negative speech about the Navy Chaplain Corps. See id. at 6. "Since these lawsuits do not support recruiting, Plaintiffs' raters can use the fact that Plaintiffs have filed these suit[s] as a reason to lower their fitness reports." Id. "The Directives punish Plaintiffs for warning civilian clergy of the Navy's systematic hostility and culture of prejudice challenged in these cases." Id. at 4. On the other hand, the plaintiffs charge that the new directives compel only positive, public speech about the Chaplain Corps and prevent any negative, public speech, such as the complaint filed in this action. See id. at 1. Accordingly, the plaintiffs assert that the directives force them to praise the Chaplain Corps when, in fact, they have already publicly expressed serious misgivings about the Corps's policies. See id.at 6.
Noting that the new directives came into existence in March 2001, one year after they filed the second of these two complaints, the plaintiffs allege that one of the principal purposes for the new policies was the Navy's desire to retaliate against the plaintiffs for filing these lawsuits. See Mot. for Prelim. Inj. at 9. The plaintiffs also claim that the directives burden their free speech rights and violate the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. See id.
The defendants deny the allegations, stating that the senior Chaplain Corps officials issued the directives "to inform chaplains of the number one priority of the Chief of Naval Operations— manpower." See Defs.' Opp'n at 1. "The Chief of Naval Operations has repeatedly expressed his belief that meeting the Navy's human resource needs is the top challenge that the Navy faces at present, and that meeting that challenge requires a Navy-wide commitment to recruiting and retaining topnotch personnel." Id.
Before addressing the merits of the plaintiffs' motion for a preliminary injunction, the defendants make a procedural argument that the court deems dispositive. See id. at 3 n. 1. They note that the "plaintiffs' motion for a preliminary injunction is not related to any allegations or claims raised by the complaints in these cases." Id. Accordingly, the defendants contend that the court lacks jurisdiction over the request for injunctive relief on these issues. See id. The court agrees.
200*200 III. ANALYSIS
A. Legal Standard for Jurisdiction to Entertain a Motion for Injunctive Relief
A party commences a civil action by filing a complaint. See FED. R. CIV. P. 3. When no complaint is filed, the court lacks jurisdiction to entertain the plaintiff's petition for injunctive relief. See P.K. Family

Restaurant v. Internal Revenue Serv., 535 F.Supp. 1223, 1224 (N.D.Ohio 1982) (dismissing the case when the plaintiff filed no complaint but sought injunctive relief to delay the collection of taxes); In the Matter of the Tax Indebtedness of Boyle, 1996 WL 806190 *1 (C.D.Cal.). In addition, this court's Local Civil Rules require that "[a]n application for preliminary injunction shall be made in a document separate from the complaint." LCvR 65.1.
Even when a motion for a preliminary injunction is predicated on a complaint, if the motion raises issues different from those presented in the complaint, the court has no jurisdiction over the motion. See Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.1994); Stewart v. U.S. Immigration and Naturalization Serv., 762 F.2d 193, 198-99 (2d Cir.1985). When the motion is based on facts closely related to the facts in the complaint, however, the court may have jurisdiction to review a motion for preliminary relief pursuant to the All Writs Act, 28 U.S.C. § 1651(a). See Equal Employment Opportunity Comm'n v. Locals 14 and 15, Int'l Union of Operating Eng'rs, 438 F.Supp. 876, 879-80 (S.D.N.Y. 1977). While a court can use the All Writs Act to issue process in aid of its jurisdiction, it cannot use the Act to enlarge its jurisdiction. See Clinton v. Goldsmith, 526 U.S. 529, 534-35, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999);Pennsylvania Bureau of Correction v. United States Marshals Serv., 474 U.S. 34, 43, 106 S.Ct. 355, 88 L.Ed.2d 189 (1985); Telecommunications Research and Action Ctr. v. Fed. Communications Comm'n, 750 F.2d 70, 78 (D.C.Cir.1984) (stating that the All Writs Act does not independently grant jurisdiction to a court).
B. The Court Denies the Plaintiffs' Motion for a Preliminary Injunction Without Prejudice Because the Court Lacks Jurisdiction
Neither the plaintiffs' complaint in the Chaplaincy case nor the one in the Adair case contains any allegations about the Navy's alleged policy of forced recruiting. In theAdair case alone, the plaintiffs set forth 13 different counts, ranging from alleged violations of the Establishment Clause, the Free Exercise Clause, and the Equal Protection Clause. While the complaint includes one count alleging that the Navy unconstitutionally restricts the plaintiffs' religious speech, this count is closely intertwined with the plaintiffs' free exercise claims and alleges that the Navy silences the plaintiffs based on the content of their religious speech. See Adair v. England, 183 F.Supp.2d at 58-59. In the instant motion, the plaintiffs' free speech claim is entirely different since it has nothing to do with the religious content of the speech. See Mot. for Prelim. Inj. In short, neither complaint contains any claim resembling the new claims contained in the plaintiffs' motion for a preliminary injunction.
Similarly, in Devose, a district court denied a plaintiff's motion for a preliminary injunction that was filed without a closely related complaint. See 42 F.3d at 471. The plaintiff's complaint alleged that the defendant prison officials had denied him adequate medical treatment for injuries he received while being transported between prison units, while the motion for a preliminary injunction involved disciplinary charges that the defendants allegedly filed against the plaintiff in retaliation for

the 201*201 underlying civil action. See id. The Eighth Circuit affirmed, explaining that "[a]lthough these new assertions might support additional claims against the same prison officials, they cannot provide the basis for a preliminary injunction in this lawsuit." Id. (citing Stewart,762 F.2d at 198-99) (ruling that because the incident relating to the plaintiff's motion for injunctive relief presented issues entirely different from those alleged in the complaint, the district court lacked jurisdiction over the motion).
For jurisdiction to exist over the instant motion for injunctive relief, the motion must be closely related to the facts, legal issues, and parties addressed in the plaintiffs' amended complaints. See Equal Employment Opportunity Comm'n, 438 F.Supp. at 880. In this case, however, as in Devose and Stewart, the only connections between the underlying lawsuit and the motion for a preliminary injunction are that both involve the plaintiffs and the defendants, and that the plaintiffs believe the defendants are retaliating against them because of the underlying lawsuit. See Devose, 42 F.3d at 471;Stewart, 762 F.2d at 198-199. As the Second and Eighth Circuits have held in similar situations, this connection to the complaint is insufficient. See id. Accordingly, the court lacks jurisdiction over the plaintiffs' motion for a preliminary injunction and thus denies the motion without prejudice.
C. The Court Allows the Plaintiffs to Supplement Their Pleadings
A plaintiff may supplement a complaint by setting forth events that have occurred since the date of the original complaint. See FED. R. CIV. P. 15(d). In their motion for a preliminary injunction, the plaintiffs mistakenly ask the court for leave to amend the pleadings, rather than asking the court for leave to supplement their pleadings. SeeMot. for Prelim. Inj. at 5 n. 9; compare FED. R. CIV. P. 15(a) with FED. R. CIV. P. 15(d). Despite the defendants' argument that the plaintiffs should not be allowed to supplement their pleadings, this case is still at a relatively early stage and discovery has not yet begun. Accordingly, the court believes that allowing the plaintiffs to supplement their pleadings would be the most sensible and logical way to proceed in this case. The court, then, gives the plaintiffs 30 days from the date of this Memorandum Opinion to supplement their complaints to add these new claims pursuant to Federal Rule of Civil Procedure 15(d). The defendants shall have 30 days from that date to answer. After the defendants have answered, the plaintiffs, if they so choose, may refile the instant motion for a preliminary injunction.
IV. CONCLUSION
For all these reasons, the court denies without prejudice the plaintiffs' motion for a preliminary injunction to restore the status quo. An order directing the parties in a fashion consistent with this Memorandum Opinion is separately and contemporaneously issued this ____ day of March, 2002.

ORDER
DENYING WITHOUT PREJUDICE THE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION TO RESTORE THE STATUS QUO
For the reasons stated in this court's Memorandum Opinion separately and contemporaneously issued this _____ day of March, 2002, it is hereby
ORDERED that the plaintiffs' motion for a preliminary injunction to restore the status quo is DENIED without prejudice; and it is
FURTHER ORDERED that the plaintiffs shall have 30 days from the date of this order to supplement their pleadings 202*202 pursuant to Federal Rule of Civil Procedure 15(d); and it is
ORDERED that the defendants shall have 30 days from the previous date to file an answer; and it is
FURTHER ORDERED that the plaintiffs shall have leave to refile the instant motion for a preliminary injunction, if they so choose, after the defendants have answered.
SO ORDERED.
[1] For an explanation of the differences between liturgical and non-liturgical Christian sects, see the court's Memorandum Opinion issued January 10, 2002. See Adair v. England, 183 F.Supp.2d at 38 (D.D.C.2002).
[2] In January 2001, the court's Calendar Committee transferred both of these cases from Judge June Green to this member of the court. In an order dated September 26, 2000, Judge Green accepted the parties' joint recommendation and consolidated the two cases for purposes of the pretrial pending motions. See Order dated September 26, 2000. The parties and the court have continued to treat these cases as consolidated for purposes of all pretrial motions.
[3] For the sake of brevity, the court will not reiterate the extensive factual and procedural history, and the numerous allegations in these cases. For a detailed discussion of these matters in the Adair and Chaplaincycases, see the court's January 10, 2002 Memorandum Opinion. See 183 F.Supp.2d 31, 2002 WL 27293 *2-11. For a detailed discussion of the factual background of the Chaplaincy case, see Judge Green's August 17, 2000 Memorandum Opinion at 2-7.

 
 217 F.Supp.2d 1 (2002)
Robert H. ADAIR et al., Plaintiffs, v.
Gordon R. ENGLAND, Secretary of the Navy, et al., Defendants. Chaplaincy of Full Gospel Churches et al., Plaintiffs, v.
Gordon R. England, Secretary of the Navy, et al., Defendants.
No. CIV.A.00-0566(RMU), CIV.A.99-2945(RMU).
United States District Court, District of Columbia.
July 31, 2002.
Arthur A. Schulcz, Sr., Vienna, VA, for plaintiffs.
Thomas E. Caballero, U.S. Dept. of Justice, Washington, DC, for defendants.
MEMORANDUM OPINION
URBINA, District Judge.
DENYING THE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION TO DELAY THE NAVY'S CHAPLAIN PROMOTION BOARDS UNTIL AFTER THE COURT RULES ON THE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE CONSTITUTIONALITY OF THOSE BOARDS
I. INTRODUCTION
These cases come before the court on the plaintiffs' motion for a preliminary injunction to delay the Navy's chaplain promotion boards until after the court rules on the plaintiffs' motion for partial summary judgment on the constitutionality of 2*2 those boards.[1] The plaintiffs, current and former Navy chaplains and an ecclesiastical endorsing agency for military chaplains, bring these suits alleging that the Navy's policies and practices favor one religion over another in violation of the First Amendment's Establishment and Free Exercise Clauses, and in violation of the Fifth Amendment's Equal Protection Clause. Specifically, the plaintiffs charge that the hiring, retention, and promotion policies of the Navy Chaplain Corps demonstrate an unconstitutional endorsement of liturgical

Christian sects over non-liturgical Christian sects.[2] For the reasons that follow, the court denies the plaintiffs' motion for a preliminary injunction.
II. BACKGROUND
Although the above-captioned cases are not consolidated for all purposes, they have been consolidated for purposes of all pretrial pending motions.[3] In the Chaplaincycase, the plaintiffs are an endorsing agency for military chaplains and seven of its individual members. In the Adair case, the plaintiffs are 17 current and former non-liturgical chaplains in the Department of the Navy ("the defendants," "Navy," or "DON"). In both cases, the plaintiffs allege that the Navy has established and maintained an unconstitutional religious quota system for promotion, assignments, and retention of Navy chaplains, in violation of both the Establishment Clause and the Free Exercise Clause of the First Amendment, and the Equal Protection Clause of the Fifth Amendment. Specifically, the plaintiffs allege that the Navy's policies and practices favor liturgical Christian chaplains over nonliturgical Christian chaplains.[4]
On January 10, 2002, the court issued a Memorandum Opinion granting in part and denying in part the defendants' motion to dismiss. Adair v. England, 183 F.Supp.2d 31 (D.D.C.2002). The court held: that strict scrutiny applies to the plaintiffs' First Amendment and equal protection claims; that the plaintiffs did not need to exhaust their administrative remedies before filing suit in federal court; that the plaintiffs had stated a claim that the Navy's hiring and retention policies violate the Establishment Clause; that the Navy's practices of allowing chaplains to rate other chaplains for promotions and of allowing multiple chaplains to serve on promotion boards do not violate the Establishment Clause; that the plaintiffs had stated a claim that the Navy's practice of displaying the religious identity of chaplains up for promotion violates the Establishment Clause and Free Exercise Clause; that the Navy's practice of having only "General 3*3Protestant" religious services could violate the Establishment Clause; and that the plaintiffs had stated a free speech claim. Id.
On January 4, 2002, the plaintiffs filed their third motion for injunctive relief in the above-captioned cases.[5] The plaintiffs sought to delay the convening of the Navy's chaplain promotion boards for fiscal year ("FY") 2003 that were scheduled to begin on February 4, 2002. In short, the plaintiffs challenged the legality of chaplain promotion boards on a number of grounds. On February 1, 2002, the court denied the plaintiffs' motion. Because the plaintiffs cannot demonstrate irreparable harm, they do not meet the high standard for the issuance of a preliminary injunction.
III. ANALYSIS
A. Legal Standard for Injunctive Relief
This court may issue a preliminary injunction only when the movant demonstrates:

(1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction is not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.
Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C.Cir.1998) (quoting City Fed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.Cir.1995)); see alsoWorld Duty Free Americas, Inc. v. Summers, 94 F.Supp.2d 61, 64 (D.D.C.2000). The district court must balance the strengths of the moving party's arguments on each of the four factors. CityFed Fin. Corp., 58 F.3d at 747. "These factors interrelate on a sliding scale and must be balanced against each other."[6] Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C.Cir.1999) (citing Serono Labs., Inc. v. Shalala,158 F.3d 1313, 1318 (D.C.Cir.1998)).[7]
In addition, a particularly strong showing on one factor may compensate for a 4*4 weak showing on one or more of the other factors. Serono Labs., Inc., 158 F.3d at 1318. "An injunction may be justified, for example, where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury."CityFed Fin. Corp., 58 F.3d at 747. If the plaintiff makes a particularly weak showing on one factor, however, the other factors may not be enough to compensate. Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1507 5*5 (D.C.Cir.1995), amended on other grounds on reh'g, 66 F.3d 1226 (D.C.Cir.1995).
It is particularly important for the movant to demonstrate a substantial likelihood of success on the merits. Cf. Benten v. Kessler, 505 U.S. 1084, 1085, 112 S.Ct. 2929, 120 L.Ed.2d 926 (1992) (per curiam). Indeed, absent a "substantial indication" of likely success on the merits, "there would be no justification for the court's intrusion into the ordinary processes of administration and judicial review." Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F.Supp.2d 114, 140 (D.D.C. 1999) (internal quotation omitted).
Moreover, the other salient factor in the injunctive-relief analysis is irreparable injury. A movant must "demonstrate at least `some injury'" to warrant the granting of an injunction. CityFed Fin. Corp., 58 F.3d at 747 (quotation omitted). Indeed, if a party makes no showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors. Id.
Finally, because preliminary injunctions are extraordinary forms of judicial relief, courts should grant them sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). As the Supreme Court has said, "[i]t frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Id. (citation omitted). Although the trial court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted lightly. Ambach v. Bell,686 F.2d 974, 979 (D.C.Cir. 1982). In addition, any injunction that the court issues must be carefully circumscribed and tailored to remedy the harm shown. Nat'l Treasury Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C.Cir. 1990) (citation omitted).

B. The Plaintiffs Fail to Show Irreparable Harm
The plaintiffs advance several arguments as to why the chaplain promotion boards are illegal. In its January 10, 2002 Memorandum Opinion, however, the court dismissed for failure to state a claim each of the plaintiffs' challenges to the constitutionality of the chaplain promotion boards except for the claim that a chaplain's religious affiliation should not be identified to a chaplain promotion board. Adair, 183 F.Supp.2d at 59-63. Accordingly, the only challenge that could possibly succeed on the merits would be the plaintiffs' claim that the religious affiliation of chaplains who are being considered for promotions should not be identified to the chaplain promotion board.[8]
6*6 In its opposition to the plaintiffs' motion for a preliminary injunction, however, the defendants proffer that the Navy no longer displays Additional Qualification Designator ("AQD") codes (alleged "faith codes") to chaplain promotion boards. Defs.' Opp'n at 14-15. AQD codes correspond to a chaplain's "endorsing agency or denomination/faith."Id. at 14. The defendants state unequivocally that "the Navy removes, and for two years has removed, the AQD codes of chaplain promotion candidates from the materials that are provided to the members of Navy selection boards." Id. As Lieutenant Commander Carey M. Sill declares:
My office began removing the AQD from the Officer Summary Record for chaplains [sic] corps promotion selection boards starting with the FY-01 Commander Chaplain Corps Promotion Selection Board held on April 13, 2000. The removal of the AQD from the Officer Summary Record for every chaplain corps promotion selection board, both active and reserve, continues to this day. The AQD is listed on no other documentation which goes before the chaplain corps promotion selection boards.
Id. Ex. A (Sill Decl.) at 3. The court notes the importance of this declaration by the defendants since it marks the first time the defendants have made such a representation to the court since the start of this litigation. The court also points out that the defendants changed their policy of including the AQD codes for the FY-01 chaplain promotion boards convened in April 2000, which means the Navy apparently altered this practice at the earliest possible juncture since the Chaplaincy and Adairplaintiffs filed their respective complaints in November 1999 and March 2000.
In response, the plaintiffs argue that in a July 2000 declaration in a Southern District of California case involving similar issues, the defendants admitted that the practice of displaying a chaplain's AQD code to a chaplain promotion board was continuing. Pls.' Reply at 9-10. The court does not consider this alleged admission, made nearly two years ago in a California case, to be nearly as important as the plaintiffs think. In contrast, the court grants much more weight to the declaration of Lieutenant Commander Sill made in this case as recently as January 17, 2002. As noted previously, Lieutenant Commander Sill's representation to the court is that the Navy has totally ceased displaying AQD codes for all chaplain promotion boards, both active and reserve.

Accordingly, at this point, the plaintiffs cannot demonstrate any irreparable harm that would justify the granting of an extraordinary remedy, i.e., the issuance of a preliminary injunction. As noted earlier, the D.C. Circuit has held that a movant must "demonstrate at least `some injury'" to warrant the granting of an injunction. CityFed Fin. Corp., 58 F.3d at 747 (quotation omitted). In addition, if a party makes no showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors. Id. In this case, the plaintiffs have not demonstrated any injury since the defendants have ceased this practice and have given no indication that they plan to resume their practice of including the 7*7 AQD codes. Accordingly, since the plaintiffs have failed to demonstrate any injury, the court denies the plaintiffs' motion for a preliminary injunction and need not consider the other factors in the injunctive-relief test. Id.
IV. CONCLUSION
For all these reasons, the court denies the plaintiffs' motion for a preliminary injunction to delay the Navy's chaplain promotion boards until after the court rules on the plaintiffs' partial summary judgment motion on the constitutionality of those boards.
[1] This Memorandum Opinion sets forth the court's reasoning for its previous order denying the plaintiffs' motion on this issue.
[2] For an explanation of the differences between liturgical and non-liturgical Christian sects, see the court's Memorandum Opinion issued January 10, 2002. Adair v. England, 183 F.Supp.2d 31 (D.D.C.2002).
[3] In January 2001, the court's Calendar Committee transferred both of these cases from Judge June Green to this member of the court. In an order dated September 26, 2000, Judge Green accepted the parties' joint recommendation and consolidated the two cases for purposes of the pretrial pending motions. Order dated Sept. 26, 2000. The parties and the court have continued to treat these cases as consolidated for purposes of all pretrial motions.
[4] For the sake of brevity, the court will not reiterate the extensive factual and procedural history, and the numerous allegations in these cases. For a detailed discussion of these matters in the Adair and Chaplaincycases, see the court's January 10, 2002 Memorandum Opinion. Adair, 183 F.Supp.2d at 35-45. For a detailed discussion of the factual background of the Chaplaincy case, see Judge Green's August 17, 2000 Memorandum Opinion at 2-7.
[5] On February 2, 2000, the Chaplaincy plaintiffs filed a motion for a temporary restraining order and a preliminary injunction seeking to block the impending selection of a new Chief of Chaplains until the court "evaluates the procedures and policies at issue in this case." Mot. for T.R.O. and Prelim. Inj. dated Feb. 2, 2000. On February 15, 2000, Judge Green denied that motion. Mem. Op. dated Feb. 15, 2000.
In addition, the plaintiffs also filed a motion for a preliminary injunction asking the court to prevent the Navy from either censoring or compelling their speech by requiring them to recruit new members to the Navy's Chaplain Corps. On March 29, 2002, this court denied that motion without prejudice, concluding that the court lacked jurisdiction over the claims that the plaintiffs set forth in their motion for a preliminary injunction since neither complaint included these allegations. Adair v. England, 193 F.Supp.2d 196 (D.D.C. 2002). The court granted the plaintiffs leave to supplement their complaints pursuant to Federal Rule of Civil Procedure 15(d), which the plaintiffs did on April 15, 2002. Id.
[6] When a party seeks a mandatory injunction, i.e., to change the status quo rather than to preserve it, "the moving party must meet a higher standard than in the ordinary case by showing `clearly' that he or she is entitled to relief or that `extreme or very serious damage' will result from the denial of the injunction." Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo-Mitsubishi, Ltd., 15 F.Supp.2d 1, 4 (D.D.C.1997) (internal quotations omitted), aff'd, 159 F.3d 636, 1998 WL 203110 (D.C.Cir.1998) (table, text in Westlaw).

[7] The court takes this opportunity to raise an issue that needs clarification. Specifically, on the question of whether a party moving for a temporary restraining order or a preliminary injunction must show all four factors to prevail on such a motion, the D.C. Circuit seems to have set forth two lines of precedent that do not entirely overlap. The differences appear unreconciled.
An example of the first line of cases is Mova Pharm. Corp. v. Shalala, 140 F.3d 1060 (D.C.Cir.1998). In that case, the Court of Appeals stated:
To demonstrate entitlement to a preliminary injunction, a litigant must show "1) a substantial likelihood of success on the merits, 2) that it would suffer irreparable injury if the injunction is not granted, 3) that an injunction would not substantially injure other interested parties, and 4) that the public interest would be furthered by the injunction."
Mova Pharm. Corp., 140 F.3d at 1066 (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.Cir.1995)). The Circuit's use of the phrase "a litigant must show" before the four factors and the use of "and" before the fourth factor clearly indicate that a litigant must meet all factors to prevail on a motion for injunctive relief.
In contrast, Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356 (D.C.Cir.1999), represents a second line of cases. In Davenport, the Court of Appeals instructs that "A court considering a plaintiff's request for a preliminary injunction must examine whether: [the four factors]." 166 F.3d at 360. Notably, the Court of Appeals did not state that a litigant "must show" all four factors.
In addition, the most crucial language in Davenport in terms of this discussion occurs when the Court of Appeals states, "In light of our affirmance of the district court's conclusion that the plaintiffs are not likely to succeed on the merits, it would take a very strong showing with respect to the other preliminary injunction factors to turn the tide in plaintiffs' favor." Davenport, 166 F.3d at 366. In this instance, the Circuit is not requiring a showing on all four factors for the issuance of injunctive relief.
These diverging lines of cases from the D.C. Circuit have apparently led to a split within our district court. Some district judges have understandably interpreted the precedent to mean that "Plaintiffs are not required to prevail on each of these factors." Flynt v. Rumsfeld, 180 F.Supp.2d 174, 175 (D.C.Cir.2002). Other district judges, including this one, have understandably interpreted the precedent to require a showing on all four factors.
Both positions can justifiably be drawn from D.C. Circuit precedent, reflecting the Mova Pharm. Corp./CityFed Fin. Corp. v. Davenport distinction. Having said that, the view of this member of the district court is that the Mova Pharm. Corp./CityFed Fin. Corp. lineage runs stronger through this Circuit's precedent.
This court is familiar with the D.C. Circuit's instruction that the four factors should be balanced on a sliding scale and that a party can compensate for a lesser showing on one factor by making a very strong showing on another factor. CityFed, 58 F.3d at 747; Davenport, 166 F.3d at 361. Having said that, in this court's view, the best interpretation of Circuit precedent, Davenport notwithstanding, is that a party moving for injunctive relief must make a showing on all four factors to prevail but the strength of the showing can vary on each factor. Put in mathematical terms, a party seeking injunctive relief must make at least a 51 percent showing on each factor but since this might not be enough to grant this extraordinary relief, a 90 percent showing of likelihood of success on the merits, for example, can compensate for a mere 51 percent showing of irreparable harm.
This interpretation jibes well with the following language from CityFed Fin. Corp.: "An injunction may be justified, for example, where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury." CityFed Fin. Corp., 58 F.3d at 747. Here, the Circuit explains that there must be at least some showing of irreparable injury. Id.
A clarification of this issue from the D.C. Circuit would be useful for the members of the district court. In the case at bar, however, no matter which standard the court applies, the plaintiffs would still not be entitled to a preliminary injunction since they fail to make any cognizable showing of irreparable harm. CityFed Fin. Corp., 58 F.3d at 747.
[8] In their motion for a preliminary injunction, the plaintiffs seek to incorporate into the court's resolution of the instant motion their December 20, 2001 motion for partial summary judgment. Mot. for Prelim. Inj. at 2. The defendants rightly label the plaintiffs' maneuver as "an impermissible attempt to advance and truncate the time for defendants to respond to plaintiffs' motion for partial summary judgment." Defs.' Opp'n to Mot. for Prelim. Inj. ("Defs.' Opp'n") at 10.
In its September 28, 2001 order, the court denied without prejudice the plaintiffs' outstanding motion for partial summary judgment and instructed the plaintiffs to refile their motion for partial summary judgment after the court issued its

Memorandum Opinion regarding the defendants' motion to dismiss so that the parties would know which claims, if any, survived the defendants' motion to dismiss. Order dated Sept. 28, 2001. In addition, the court's September 28, 2001 order stated that "[t]he court agrees with the defendants that they should be entitled to have a full briefing period on the plaintiffs' motion" for partial summary judgment. Id. at 2. Moreover, the court specifically directed the plaintiffs to refile their motion for partial summary judgment after the court issued its Memorandum Opinion relating to the defendants' motion to dismiss. Id.
On January 10, 2002, the court issued its 62-page Memorandum Opinion denying in part and granting in part the defendants' motion to dismiss. Adair, 183 F.Supp.2d 31. Because the court deems the plaintiffs' attempt to incorporate its motion for partial summary judgment into the instant motion for a preliminary injunction an impermissible backdoor maneuver, the court will not consider the plaintiffs' December 20, 2001 motion for partial summary judgment in its analysis of their motion for a preliminary injunction.

 
 Adair v. England, 209 F.R.D. 1 (2002)

209 F.R.D. 1 United States District Court,
District of Columbia.
Robert H. ADAIR et al., Plaintiffs, v.
Gordon R. ENGLAND, Secretary of the Navy, et al., Defendants.
Chaplaincy of Full Gospel Churches et al., Plaintiffs, v.
Gordon R. England, Secretary of the Navy, et al., Defendants.
Civ.A. Nos. 00–0566(RMU), 99–2945(RMU). | Aug. 5, 2002.
Current and former Navy chaplains, and ecclesiastical endorsing agency for military chaplains, brought actions against the Navy, alleging that the Navy Chaplain Corps’ hiring, retention, and promotion policies favored one religion over another in violation of the First and Fifth Amendments. After consolidation of the cases for purposes of pending pretrial motions, Navy’s motion to dismiss was granted in part. On chaplains’ motion for relief from judgment and for partial summary judgment, the District Court, Urbina, J., held that: (1) court would treat chaplain’s motion for relief from judgment as a motion for relief from judgment as result of excusable neglect or new evidence, and (2) allegedly new evidence did not warrant relief from judgment.
Denied.
Attorneys and Law Firms
*1 Arthur A. Schulcz, Vienna, VA, for plaintiffs.
Thomas E. Caballero, U.S. Department of Justice, Washington, DC, for defendants.
Opinion

URBINA, District Judge.

I. INTRODUCTION
These cases come before the court on the plaintiffs’ motion for relief from judgment of *2 two aspects of the court’s January 10, 2002 Memorandum Opinion (“Memorandum Opinion”) denying in part and granting in part the defendants’ motion to dismiss.1 The plaintiffs, current and former Navy chaplains and an ecclesiastical endorsing agency for military chaplains, bring these suits alleging that the Navy’s policies and practices favor one religion over another in violation of the First Amendment’s Establishment and Free Exercise Clauses, and in violation of the Fifth Amendment’s Equal Protection Clause. Specifically, the plaintiffs charge that the hiring, retention, and promotion policies of the Navy Chaplain Corps demonstrate an unconstitutional endorsement of liturgical Christian sects over non-liturgical Christian sects.2 For the reasons that follow, the court denies the plaintiffs’ motion for relief from judgment and for partial summary judgment.

1

The plaintiffs call their motion a “Motion for

Reconsideration.” Pl.’s Mot. for Recons. at 1. Because

the Federal Rules of Civil Procedure do not contain

anything known as a “Motion for Reconsideration” and

because the plaintiffs fail to cite to any federal rule

under which they bring this motion, the court treats the

plaintiff’s motion as a motion for relief from judgment

as per Federal Rule of Civil Procedure 60(b) since they

did not file the motion within 10 days of entry of the

court’s Memorandum Opinion. FED. R. CIV. P. 60(b).

2

For an explanation of the differences between liturgical

and non-liturgical Christian sects, see the court’s

Memorandum Opinion issued January 10, 2002. Adair

v. England, 183 F.Supp.2d 31 (D.D.C.2002).

MEMORANDUM OPINION
DENYING THE PLAINTIFFS’ MOTION FOR RELIEF FROM JUDGMENT AND FOR PARTIAL
SUMMARY JUDGMENT

II. BACKGROUND
Although the above-captioned cases are not consolidated for all purposes, the court has consolidated them for purposes of all pretrial pending motions.3 In the Chaplaincy case, the plaintiffs are an endorsing agency
1

Adair v. England, 209 F.R.D. 1 (2002)

for military chaplains and seven of its individual members. In the Adair case, the plaintiffs are 17 current and former non-liturgical chaplains in the Department of the Navy (“the defendants,” “Navy,” or “DON”). In both cases, the plaintiffs allege that the Navy has established and maintained an unconstitutional religious quota system for promotion, assignments, and retention of Navy chaplains, in violation of both the Establishment Clause and the Free Exercise Clause of the First Amendment, and the Equal Protection Clause of the Fifth Amendment. Specifically, the plaintiffs allege that the Navy’s policies and practices favor liturgical Christian chaplains over non-liturgical Christian chaplains.4

3

In January 2001, the court’s Calendar Committee

transferred both of these cases from Judge June Green

to this member of the court. In an order dated

September 26, 2000, Judge Green accepted the parties’

joint recommendation and consolidated the two cases

for purposes of the pretrial pending motions. Order

dated Sept. 26, 2000. The parties and the court have

continued to treat these cases as consolidated for

purposes of all pretrial motions.

4

For the sake of brevity, the court will not reiterate the

extensive factual and procedural history, and the

numerous allegations in these cases. For a detailed

discussion of these matters in the Adair and Chaplaincy

cases, see the court’s January 10, 2002 Memorandum

Opinion. Adair, 183 F.Supp.2d at 35–45. For a detailed

discussion of the factual background of the Chaplaincy

case, see Judge Green’s August 17, 2000 Memorandum

Opinion at 2–7.

On January 10, 2002, the court issued a Memorandum Opinion granting in part and denying in part the defendants’ motion to dismiss. Adair v. England, 183 F.Supp.2d 31 (D.D.C.2002). The court held: that strict scrutiny applies to the plaintiffs’ First Amendment and equal protection claims; that the plaintiffs did not need to exhaust their administrative remedies before filing suit in federal court; that the plaintiffs had stated a claim that the Navy’s hiring and retention policies violate the Establishment Clause; that the Navy’s practices of allowing chaplains to rate other chaplains for promotions and of allowing multiple chaplains to serve on promotion boards do not violate the Establishment Clause; that the plaintiffs had stated a claim that the Navy’s practice of displaying the religious identity of chaplains up for promotion violates the Establishment Clause and Free Exercise Clause; that the Navy’s practice of having only “General Protestant” religious services could violate the Establishment Clause; and that the plaintiffs had stated a

free speech claim. Id.
*3 On January 28, 2002, the plaintiffs filed a motion for relief from two aspects of its Memorandum Opinion. Specifically, the plaintiffs ask the court to reassess its decisions to dismiss the plaintiffs’ claims that having chaplains sit on chaplain promotion boards and allowing chaplains to rate other chaplains are practices that violate the First Amendment. Pls.’ Mot. for Recons. and Partial Summ. J. (“Pls.’ Mot.”) at 1. The court now turns to the plaintiffs’ motion.
III. ANALYSIS
A. The Court Treats the Plaintiffs’ Motion as a Rule 60(b) Motion
[1] Before setting forth the appropriate legal standard for the resolution of the plaintiffs’ motion, the court must address which procedural rule the plaintiffs’ motion falls under since the plaintiffs fail to point to a specific rule. The court issued its Memorandum Opinion on January 10, 2002. Adair, 183 F.Supp.2d 31. The plaintiffs filed their motion for reconsideration and for partial summary judgment on January 28, 2002. Accordingly, the plaintiffs did not file their motion within 10 business days of the issuance of the court’s Memorandum Opinion. Parties must file Federal Rule of Civil Procedure 59(e) motions to alter or amend a judgment within 10 business days of the entry of the judgment at issue. FED. R. CIV. P. 59(e), 6(a); Derrington–Bey v. District of Columbia Dep’t of Corrections, 39 F.3d 1224, 1224–26 (D.C.Cir.1994); W.C. & A.N. Miller Cos. v. United States, 173 F.R.D. 1, 3 (D.D.C.1997) (citations omitted). In addition, the D.C. Circuit has clarified that for Rule 59(e) motions, three days are not added to the time requirement when service is by mail, and district courts do not have the discretion to enlarge the 10–day period. Derrington–Bey, 39 F.3d at 1225; FED. R. CIV. P. 6(b), (e). “The period is to be kept short presumably because a timely Rule 59(e) motion deprives the judgment of finality.” Derrington–Bey, 39 F.3d at 1225. Consequently, the court must treat the plaintiffs’ instant motion as a Rule 60(b) motion for relief from judgment. FED. R. CIV. P. 60(b).
B. Legal Standard for Motion for Relief from Judgment
2

Adair v. England, 209 F.R.D. 1 (2002)

[2] In its discretion, the district court may relieve a party from an otherwise final judgment, order or proceeding under six circumstances as set forth in Rule 60(b).5 FED. R. CIV. P. 60(b); Lepkowski v. Dep’t of Treasury, 804 F.2d 1310, 1311–12 (D.C.Cir.1986). According to the first factor in Rule 60(b), relief from a judgment may be granted for “mistake, inadvertence, surprise, or excusable neglect.” FED. R. CIV. P. 60(b). Such relief under Rule 60(b) turns on equitable factors, notably, whether any neglect was excusable. Pioneer Investment Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Second, the court may relieve a party from an otherwise final judgment or order where there is “newly discovered evidence” which the moving party could not have discovered even by the exercise of due diligence. FED. R. CIV. 60(b). Third, the court may set aside a judgment or order for fraud, misrepresentation, or other conduct of an adverse party. FED. R. CIV. P. 60(b); Mayfair Extension, Inc. v. Magee, 241 F.2d 453, 454 (D.C.Cir.1957). Specifically, “the movant must show (1) that such ‘fraud’ prevented him or her from fully and fairly presenting his or her case, and (2) that the fraud is attributable to the party or, at least, to counsel.” Richardson v. Nat’l R.R. Passenger Corp., 150 F.R.D. 1, 7 (D.D.C.1993) (citations omitted). Parties must submit motions pursuant to Rule 60(b) within a reasonable time, and, for reasons (1), (2), and (3), parties must submit their motions within one year after the judgment at issue. FED. R. CIV. P. 60(b).

5

While the court’s January 10, 2002 Memorandum

Opinion does not constitute a final judgment for the

entire litigation, it does amount to a final judgment on

the claims for which the court granted dismissal. To

determine if a decision constitutes a final judgment,

courts must ascertain that the decision amounts to “a

‘judgment’ in the sense that it is a decision upon a

cognizable claim for relief, and it must be ‘final’ in the

sense that it is ‘an ultimate disposition of an individual

claim entered in the course of a multiple claims action.’

” Curtiss–Wright Corp. v. Gen. Electric Co., 446 U.S.

1, 7, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980) (quotations

omitted).

Pursuant to the fourth reason, a party may, at any time, seek relief from the court *4 where the judgment or order is “void.” FED. R. CIV. P. 60(b). A judgment or order may be void because the court lacked personal or subject-matter jurisdiction in the case, acted in a manner inconsistent with due process, or proceeded beyond the powers granted to it by law. Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 871 (4th Cir.1999). Fifth, the court may grant relief from a final order if the “judgment has been satisfied, released, or discharged, or a

prior judgment upon which it is based has been reversed ... or it is no longer equitable that the judgment should have prospective application.” FED. R. CIV. P. 60(b); Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C.Cir.1988) (noting that not all judgments that have continuing consequences are “prospective” for the purposes of Rule 60(b)). Finally, a party may, within a reasonable time, seek relief from a judgment or order for “any ... reason justifying relief from the operation of judgment.” FED. R. CIV. P. 60(b). This final reason, however, should be used sparingly and applied only in “extraordinary circumstances.” Pioneer, 507 U.S. at 393, 113 S.Ct. 1489.
C. The Plaintiffs Fail to Meet the Requirements of Rule 60(b)
[3] In their motion, the plaintiffs contend that the defendants made material misrepresentations, that the plaintiffs are presenting new evidence, and that the court committed clear error in its Memorandum Opinion. The court deems the plaintiffs’ arguments to be no more than a regurgitation of arguments previously raised and rejected.
In a nutshell, the plaintiffs assert that chaplains are not like other officers “because their primary function is to represent their faith group and conduct religious services.” Pls.’ Reply at 1. In addition, they argue, for a chaplain to act lawfully on a promotion board, he must act as a faith-group representative. Pls.’ Mot. at 4. “[C]haplains serve in the Navy at the pleasure of their faith group, not the Navy.” Id. at 3. Moreover, the plaintiffs contend that allowing these religious representatives to rate other faith group representatives or to choose them for promotion improperly delegates a government function to a religious representative. Pls.’ Reply at 1.
The court need not consider the merits of these arguments again because it already has explained its reasoning thoroughly in its Memorandum Opinion. Adair, 183 F.Supp.2d at 59–62. The court completely agrees with the defendants’ assessment that:
Plaintiffs merely continue their attacks on the Navy’s position; they set forth no clear error on the Court’s part, present no “new” evidence or legal precedent that was not available to them at the time they drafted their complaints or responded to defendants’
3

Adair v. England, 209 F.R.D. 1 (2002)
motion, and never address how the material they provide differs from the factual allegations they make in their complaints.
Defs.’ Opp’n at 1. Moreover, the plaintiffs’ reliance on putative new “evidence” to support their motion for relief from judgment is insufficient. Id. at 12. In its Memorandum Opinion, the court accepted the plaintiffs’ well-pled factual allegations as true and did not consider any extrinsic evidence. Adair, 183 F.Supp.2d at 45–46; see also Defs.’ Opp’n at 12–13. Indeed, the court reviewed the plaintiffs’ allegations in the light most favorable to the plaintiffs and ruled that those allegations failed to state a claim for relief as a matter of law regarding the plaintiffs’ challenge to the chaplains serving on promotion boards and rating other chaplains. Id. Thus, as the defendants correctly point out, the plaintiffs’ extended discussion of new “evidence” and of the court’s failure to evaluate previously submitted material provides no basis whatsoever for reconsideration of the court’s dismissal of these claims. Id. at 13.
In addition, the court agrees with the defendants that the plaintiffs’ new “evidence” is merely “cumulative of the allegations in the complaints and insufficient to support a motion for reconsideration.” Id. Moreover, the defendants correctly note that “because the material submitted during the briefing on the motion to dismiss is of the same type as that set forth by the allegations in the complaints, the [c]ourt cannot be said to have committed clear error in not

considering it.” Id. at 14.
*5 [4] Finally, the defendants correctly proffer that the plaintiffs’ procedural tactic of moving for partial summary judgment on claims that the court has already dismissed is totally improper. Id. at 14–15. “Only if—and, then, only after—the dismissed claims are reinstated could any such motion even be in order. At that point, defendants would be entitled to a full opportunity to address any evidentiary [material] [sic] submitted by plaintiffs.” Id. at 15. In any event, because the court hereby denies the plaintiffs’ motion for relief from judgment, the plaintiffs themselves acknowledge that they could not prevail on the other part of their instant motion, the motion for partial summary judgment. Pls.’ Reply at 18. The court thus denies both the plaintiffs’ motion for relief from judgment and the plaintiffs’ motion for partial summary judgment.
IV. CONCLUSION
For all these reasons, the court denies the plaintiffs’ motion for relief from judgment and for partial summary judgment. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously issued this 5 day of August, 2002.

4

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

209 F.R.D. 5 United States District Court,
District of Columbia.
Robert H. ADAIR et al., Plaintiffs, v.
Gordon R. ENGLAND, Secretary of the Navy, et al., Defendants.
Civ.A. No. 00–0566 RMU. | Aug. 19, 2002.
Group naval chaplains drawn from non-liturgical Protestant denominations sued Navy, asserting violations of their exercise of religion and equal protection rights. Following grant in part and denial in part of Navy’s motion to dismiss, 183 F.Supp.2d 31, chaplains moved for class certification. The District Court, Urbina, J., held that: (1) numerosity requirement was satisfied; (2) commonality and typicality requirements were satisfied; (3) adequacy of representation requirement was satisfied, despite claim of conflicts among chaplains; and (4) maintenance as class action was appropriate, in order to ensure that Navy was not faced with inconsistent orders from different courts.
Class certified.
See, also, 209 F.R.D. 1.
Attorneys and Law Firms
*6 Arthur A. Schulcz, Sr., Bradley L. Bolinger, Vienna, VA, for plaintiffs.
Thomas E. Caballero, Michael Q. Hyde, U.S. Department of Justice, Washington, D.C., for defendants.
Opinion
MEMORANDUM OPINION
URBINA, District Judge.
GRANTING THE PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

I. INTRODUCTION
This case comes before the court on the plaintiffs’ motion for class certification. The plaintiffs, current and former Navy chaplains, bring this suit alleging that the Navy’s policies and practices favor one religion over another in violation of the First Amendment’s Establishment and Free Exercise Clauses, and in violation of the Fifth Amendment’s Equal Protection Clause. Specifically, the plaintiffs charge that the hiring, retention, and promotion policies of the Navy Chaplain Corps demonstrate an unconstitutional endorsement of liturgical Christian sects over non-liturgical Christian sects.1 For the reasons that follow, the court grants the plaintiffs’ motion for class certification.

1

For an explanation of the differences between liturgical

and non-liturgical Christian sects, see the court’s

Memorandum Opinion issued January 10, 2002. Adair

v. England, 183 F.Supp.2d 31 (D.D.C.2002).

II. BACKGROUND
The court has consolidated this case with a related case, Chaplaincy v. England, Dkt. No. 99cv2945, for purposes of all pretrial motions.2 In the Chaplaincy case, the plaintiffs are an endorsing agency for military chaplains and seven of its individual members. *7 In the Adair case, the plaintiffs are 17 current and former non-liturgical chaplains in the Department of the Navy (“the defendants,” “Navy,” or “DON”). In both cases, the plaintiffs allege that the Navy has established and maintained an unconstitutional religious quota system for promotion, assignments, and retention of Navy chaplains, in violation of both the Establishment Clause and the Free Exercise Clause of the First Amendment, and the Equal Protection Clause of the Fifth Amendment. Specifically, the plaintiffs allege that the Navy’s policies and practices favor liturgical Christian chaplains over non-liturgical Christian chaplains.3

2

In January 2001, the court’s Calendar Committee

transferred both cases from Judge June Green to this

member of the court. In an order dated September 26,

2000, Judge Green accepted the parties’ joint

recommendation and consolidated both cases for

purposes of the pretrial pending motions. Order dated

Sept. 26, 2000. The parties and the court have

continued to treat these cases as consolidated for

1

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

purposes of all pretrial motions.

3

For the sake of brevity, the court will not reiterate the

extensive factual and procedural history, and the

numerous allegations in these cases. For a detailed

discussion of these matters in the Adair and Chaplaincy

cases, see the court’s January 10, 2002 Memorandum

Opinion. Adair, 183 F.Supp.2d at 35–45. For a detailed

discussion of the factual background of the Chaplaincy

case, see Judge Green’s August 17, 2000 Memorandum

Opinion at 2–7.

On January 10, 2002, the court issued a Memorandum Opinion granting in part and denying in part the defendants’ motion to dismiss. Adair v. England, 183 F.Supp.2d 31 (D.D.C.2002). The court held that: (1) strict scrutiny applies to the plaintiffs’ First Amendment and equal protection claims; (2) the plaintiffs did not need to exhaust their administrative remedies before filing suit in federal court; (3) the plaintiffs had stated a claim that the Navy’s hiring and retention policies violate the Establishment Clause; (4) the Navy’s practices of allowing chaplains to rate other chaplains for promotions and of allowing multiple chaplains to serve on promotion boards do not violate the Establishment Clause; (5) the plaintiffs had stated a claim that the Navy’s practice of displaying the religious identity of chaplains up for promotion violates the Establishment Clause and Free Exercise Clause; (6) the Navy’s practice of having only “General Protestant” religious services could violate the Establishment Clause; and (7) the plaintiffs had stated a free speech claim. Id.
On March 26, 2002, the plaintiffs filed a motion for class certification pursuant to Federal Rule of Civil Procedure 23. The plaintiffs include 17 former or current non-liturgical Christian chaplains and at least 17 additional non-liturgical chaplains who seek to join this litigation.4 Pls.’ Mot. to Certify the Class (“Pls.’ Mot.”) at 3. The plaintiffs ask the court to certify a class “defined as all Navy non-liturgical Protestant chaplains who served in the Navy at any time since fiscal year 1988.” Id. at 4. The plaintiffs contend that the putative class “has been adversely affected by the Navy’s and the Corps’ culture of unlawful bias and prejudice, including the Navy’s use of religious quotas not related to a compelling Navy objective.” Id. The defendants oppose the plaintiffs’ motion.

4

This figure does not include the seven chaplain

plaintiffs in the Chaplaincy case. Pls.’ Mot. at 3.

III. ANALYSIS
A. Legal Standard for a Motion for Class Certification
Federal Rule of Civil Procedure 23 sets forth the requirements for class certification. FED.R.CIV.P. 23. Congress designed the rule to promote the efficient and economical conduct of litigation. Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). A class action generally enables courts “to treat common claims together, obviating the need for repeated adjudications of the same issues.” In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 783 (3d Cir.1995). An exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only, the class action is “peculiarly appropriate” when the “issues involved are common to the class as a whole” and when they “turn on questions of law applicable in the same manner to each member of the class.” Gen. Tel. Co. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (quotations omitted). A party who seeks to certify a class bears the burden of establishing Rule 23’s requirements. Heaven v. Trust Co. Bank, 118 F.3d 735, 737 (11th Cir.1997); Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir.1988).
*8 To obtain class certification, a party must first demonstrate that it can meet the four prerequisites of Rule 23(a). FED.R.CIV.P. 23(a); Falcon, 457 U.S. at 156, 102 S.Ct. 2364. Those requirements are that:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
FED.R.CIV.P. 23(a). Once a party has demonstrated numerosity, commonality, typicality, and adequacy, it still must satisfy one prong of Rule 23(b) to warrant class certification. FED.R.CIV.P. 23(b).
In determining whether to certify a class, the court should
2

Adair v. England, 209 F.R.D. 5 (2002)
not consider the underlying merits of the plaintiff’s claims. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177–78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12, 14, 21 (D.D.C.2001). Noting that Rule 23(c)(1) instructs district courts to rule on class status “[a]s soon as practicable after the commencement of an action brought as a class action,” the Supreme Court has explained that in “determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Eisen, 417 U.S. at 178, 94 S.Ct. 2140 (quotation omitted); see also In re Cardizem CD Antitrust Litig., 200 F.R.D. 297, 303 (E.D.Mich.2001) (“A Rule 23 determination is wholly procedural and has nothing to do with whether a plaintiff will ultimately prevail on the substantive merits of its claim.”) (quotation omitted). Moreover, the court accepts as true the allegations set forth in the complaint. Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656, 661 n. 15 (2d Cir.1978); In re Lorazepam, 202 F.R.D. at 21. Lastly, “when a court is in doubt as to whether to certify a class action, it should err in favor of allowing a class.” In re Cardizem, 200 F.R.D. at 303 (quotation omitted).
C. The Plaintiffs Satisfy Rule 23’s Requirements
Because the plaintiffs in this case satisfy all four of Rule 23(a)’s prerequisites as well as Rule 23(b)(1)(A), the court rules that they may proceed in this litigation as a class action. FED.R.CIV.P. 23.
1. Rule 23(a) Prerequisites
a. Numerosity
[1] The first prerequisite for class certification is that the class be “so numerous that joinder of all members is impracticable.” FED.R.CIV.P. 23(a)(1). The plaintiffs need not provide a specific number as long as they give a reasonable basis for their estimate. In re Lorazepam, 202 F.R.D. at 26. In this case, there are at least 34 parties who desire to be or who are already named as plaintiffs in the complaint.5 In addition, the plaintiffs point to the Navy’s own statistics to demonstrate that the class would probably include at least 700 and as many as 1,000 members. Pls.’ Reply at 6–7. Accordingly, the plaintiffs

have provided a “reasonable basis for the [ir] estimate.” In re Lorazepam, 202 F.R.D. at 26. Because of the large numbers of possible class members, joinder of all members is impracticable. FED.R.CIV.P. 23(a)(1). Moreover, because Navy chaplains work in locations around the world, joinder is especially difficult and the class action device is more appropriate. Pls.’ Mot. at 7; In re Lorazepam, 202 F.R.D. at 26. In their opposition, the defendants essentially concede the numerosity prong and focus their attacks on the other three prongs of Rule 23(a). Defs.’ Opp’n to Pls.’ Mot. (Defs.’ Opp’n) at 35. The court concludes that the plaintiffs have satisfied the numerosity requirement.

5

While only 17 plaintiffs are currently named in the

complaint, the court ruled at the February 7, 2002 status

hearing that the additional 17 plaintiffs could join the

suit. Feb. 7, 2002 Status Hr’g; Pls.’ Mot. at 7.

b. Commonality and Typicality
The Supreme Court has explained that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364. Accordingly, *9 the court treats these two requirements together. The defendants follow the same approach and choose this area as their main target in their efforts to denude the plaintiffs’ quest for class certification. Indeed, the defendants devote 28 pages out of their 40–page brief to their argument that the plaintiffs have not established the commonality or typicality of their claims with the putative class. Defs.’ Opp’n at 5–30.
[2] The commonality prerequisite mandates that there are questions of law or fact common to the class. FED.R.CIV.P. 23(a)(2). “The commonality requirement will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class.” Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56 (3d Cir.1994); see also Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir.1997); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 145, 166–67 (2d Cir.1987); In re Lorazepam, 202 F.R.D. at 26.
[3] The defendants go to great lengths to try to show how different the individual plaintiffs’ claims are. For example, the defendants note that some plaintiffs claim they suffered from a hostile work environment and correctly point out that only a small number of plaintiffs allege that the Navy constructively discharged them from active duty. Defs.’ Opp’n at 7. While some plaintiffs
3

Adair v. England, 209 F.R.D. 5 (2002)
allege that the Navy failed to promote them for improper reasons, others claim that the Navy forced them into early retirement. Id. The defendants also assert that the Navy is a decentralized entity, with “numerous decision-makers at almost 500 duty stations.” Id. at 14. In the defendants’ view, therefore, the “plaintiffs have offered up various individual allegations of discrimination, each entailing factual situations and raising legal questions that are neither common across the class nor typical of the claims of the putative class members.” Id. at 8.
The defendants also spend substantial time arguing the merits of the plaintiffs’ claims. E.g., Defs.’ Opp’n at 9–12 (“... no candidates were disapproved because of their religious denomination or faith group”). As noted previously, however, a court considering the merits of a motion for class certification should not assess the merits of the moving party’s claims and must accept the moving party’s claims as true for purposes of the motion. Eisen, 417 U.S. at 177–78, 94 S.Ct. 2140; Shelter Realty Corp., 574 F.2d at 661 n. 15. “A Rule 23 determination is wholly procedural and has nothing to do with whether a plaintiff will ultimately prevail on the substantive merits of its claim.” In re Cardizem, 200 F.R.D. at 303 (quotation omitted). Accordingly, the court need not assess this line of argument made by the defendants.
In their challenge to the motion for class certification, the defendants lean heavily on the Supreme Court case of General Telephone Company of Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). This reliance is misplaced. In Falcon, the Court held that the district court had erred in permitting a plaintiff to maintain a class action on behalf of all Mexican–American job applicants whom the company did not hire. Id. at 149, 102 S.Ct. 2364. Brought under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000 et seq., the case involved a Mexican–American plaintiff who claimed that the company passed him over for promotions in favor of white employees with less seniority because of unlawful discrimination based on national origin. Id. at 149–50, 102 S.Ct. 2364.
The Court ruled that this “across-the-board” attack against the defendants’ allegedly discriminatory employment practices could not proceed as a class because the plaintiff had not established “that the adjudication of his claim of discrimination in promotion would require the decision of any common question concerning the failure of [the defendant] to hire more Mexican–Americans.” Id. at 158, 102 S.Ct. 2364. The Court noted that the plaintiff had failed to make “any specific presentation identifying the questions of law or fact that were common to the claims

of [the plaintiff] and of the members of the class he sought to represent....” Id. Thus, the district court mistakenly presumed that the plaintiff’s claim was “typical of other claims” against the defendant by Mexican–American employees and applicants. Id. at 158–59, 102 S.Ct. 2364. Fearing the slippery slope, the Court expressed *10 concern that allowing this case to proceed as a class action would mean that one allegation of specific discriminatory treatment could make “every Title VII case ... a potential companywide class action.” Id. at 159, 102 S.Ct. 2364.
Falcon is easily distinguishable from the case at bar. Most importantly, in the former case, there was only one plaintiff. Id. at 149, 102 S.Ct. 2364. That plaintiff failed to identify any other specific plaintiff who allegedly endured similarly disparate treatment. Id. In contrast, the plaintiffs in this case have already named 34 people who have suffered from the Navy’s allegedly wrongful pattern of religious discrimination.6 Pls.’ Reply at 34. Moreover, as this court has previously noted in its January 10, 2002 Memorandum Opinion ruling on the defendants’ motion to dismiss, “the plaintiffs provide hard statistics” in support of their claims challenging the Navy’s hiring and retention practices of chaplains. Adair, 183 F.Supp.2d at 56. Accordingly, the plaintiffs’ allegations—which the court accepts as true for the purposes of this motion, Shelter Realty Corp., 574 F.2d at 661 n. 15—easily satisfy Falcon’s requirement that the plaintiffs make a “specific presentation identifying the questions of law or fact that [are] common to the claims of [the plaintiff] and of members of the class [the plaintiff seeks] to represent....” Falcon, 457 U.S. at 158, 102 S.Ct. 2364.

6

Once again, this figure does not include the seven

additional plaintiffs in the consolidated Chaplaincy

case.

In addition, the defendants’ contention that individual differences among the plaintiffs should prevent certification of a class because of a lack of commonality misses the bigger picture. As the plaintiffs correctly proffer, the court has already said in reference to the plaintiffs’ claims involving the free exercise of religion and freedom of religious speech:
The overriding theme that runs through all the claims relating to the plaintiffs’ free exercise of their religion is that the Navy has adopted and implemented policies and practices that effectively silence non-liturgical Christian chaplains.
These claims include: identifying a chaplain-promotion
4

Adair v. England, 209 F.R.D. 5 (2002)
candidate’s religion to the chaplain promotion board; forcing non-liturgical churches off base into “sub-standard facilities which were inadequate to hold the number of those wanting to attend, while Catholic and liturgical Protestants enjoyed spacious on post facilities,”; senior Catholic and liturgical Protestants chaplains intentionally giving some non-liturgical Christian chaplains lower performance ratings than similarly situated Catholic and liturgical Protestant chaplains “solely on the basis of their religious identification and beliefs despite evidence of the non-liturgical chaplains’ superior performance” ...
In all these allegations, the plaintiffs charge that because the Navy treats non-liturgical Christian chaplains less favorably, the defendants’ policies and practices serve to impair or impede the plaintiffs’ free exercise of religion.
Adair, 183 F.Supp.2d at 65 (emphasis added). The court has already characterized the plaintiffs’ free exercise claims as having an “overriding theme.” Id. This characterization applies equally to the plaintiffs’ Establishment Clause and Equal Protection Clause claims. Consequently, the named plaintiffs and the members of the putative class share several of the same legal claims, all relating to the Navy’s allegedly unconstitutional system of religious preferences.
In the final analysis, the court agrees with the plaintiffs that the defendants “mis-characterize plaintiffs [sic] claims as merely a series of individualized incidents rather than the results of a common policy.” Pls.’ Reply at 1. What the plaintiffs actually allege is a pervasive pattern of religious preferences favoring liturgical Christian chaplains over non-liturgical Christian chaplains. E.g., Compl. at 29–30. All the comparatively minor individual differences among the plaintiffs’ claims shoot out like spokes on a wheel from the tire’s center—the Navy’s alleged policies and practices that supposedly foster unconstitutional religious preferences.
“The commonality requirement will be satisfied if the named plaintiffs share at least *11 one question of fact or law with the grievances of the prospective class.” Baby Neal, 43 F.3d at 56; see also Lightbourn, 118 F.3d at 426; In re “Agent Orange” Prod. Liab. Lit., 818 F.2d at 166–67; In re Lorazepam, 202 F.R.D. at 26. Because the plaintiffs have demonstrated that the named non-liturgical Christian chaplain plaintiffs share several central questions of constitutional law with the grievances of the prospective class of non-liturgical Christian chaplain plaintiffs, they have satisfied the commonality requirement. Id.

[4] For similar reasons, the plaintiffs have also satisfied the requirement that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” FED.R.CIV.P. 23(a)(3). As the Supreme Court has explained, “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364. Consequently, because each class member’s claim would arise from the same course of events that led to the claims of the representative parties, and because each class member would make similar legal arguments to prove the defendant’s liability, the plaintiffs have satisfied Rule 23(a)(3)’s typicality requirement. In re Lorazepam, 202 F.R.D. at 27.
c. Adequacy
[5] The final prerequisite for class certification is that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). The D.C. Circuit has stated that “[t]wo criteria for determining the adequacy of representation are generally recognized: 1) the named representative must not have antagonistic or conflicting interests with the unnamed members of the class, and 2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.” Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575 (D.C.Cir.1997) (quotation omitted).
The defendants “do not contest the adequacy of counsel’s representation at this time.” Defs.’ Opp’n at 34 n. 19. Instead, the defendants charge that the named plaintiffs would have conflicting interests with the putative class. Id. at 33–34. In support of this argument, the defendants maintain that because some non-liturgical Christian chaplains sat on chaplain promotion boards that decided not to promote non-liturgical Christian chaplains, members of the class would have conflicting interests. Id. at 33. More generally, they contend that the mix of supervisory and non-supervisory chaplains militates against adequacy. Id. at 34.
The plaintiffs effectively counter, however, that the law allows those who become participants in an allegedly unlawful scheme to challenge the legality of the scheme and even to raise the right of third parties in doing so. Pls.’ Reply at 24 (citing Sec’y of State v. Joseph H. Munson Co., 467 U.S. 947, 956–57, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) (stating that doctors could challenge abortion laws on behalf of their patients)). The court concludes that the defendants’ concerns about conflicts
5

Adair v. England, 209 F.R.D. 5 (2002)
within the class are unfounded and that the plaintiffs have satisfied Rule 23(a)(4)’s adequacy requirement.
2. Rule 23(b)
Because the plaintiffs have satisfied Rule 23(a)’s four prerequisites to a class action, the court must now evaluate whether the plaintiffs can maintain a class action pursuant to one of Rule 23(b)’s subdivisions. FED.R.CIV.P. 23(b). The plaintiffs submit that this action is maintainable as a class action under Rule 23(b)(1)(A), (b)(2), and (b)(3). Pls.’ Mot. at 17–29. The court agrees with the plaintiffs that this action could proceed under all three categories. Having said that, the court concludes that the most appropriate category is under Rule 23(b)(1)(A).
[6] “When either subsection (b)(1) or (b)(2) is applicable, ... b(3) should not be used, so as to avoid unnecessary inconsistencies and compromises in future litigation.” DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1175 (8th Cir.1995); In re A.H. Robins Co., 880 F.2d 709, 728 (4th Cir.1989) (stating that certification should be made under (b)(1) if action may also qualify under (b)(3)), overruled on other grounds, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); 5 Moore’s Federal Practice, § 23.40[2] (3d ed. 2000) (“If a *12 choice exists between certification under Rule 23(b)(3) and either Rule 23(b)(1) or (b)(2), courts generally certify the class action pursuant to (b)(1) or (b)(2)”); see also Eubanks v. Billington, 110 F.3d 87, 91–96 (D.C.Cir.1997).
[7] Federal Rule of Civil Procedure 23(b)(1)(A) provides:
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing class
FED.R.CIV.P. 23(b)(1)(A). Rule 23(b)(1)(A) certification is appropriate when the class seeks injunctive or declaratory relief to change an alleged ongoing course of conduct that is either legal or illegal as to all members of the class. 5 Moore’s Federal Practice § 23.41[4] (3d

ed.2000). “Rule 23(b)(1)(A) certification is most common” in cases in which the class seeks declaratory or injunctive relief against the government “to provide unitary treatment to all members of a defined group.” Id.; Pls.’ Mot. at 18.
That is precisely the situation in the case at bar because the plaintiffs seek declaratory relief and a permanent injunction. Adair, 183 F.Supp.2d at 45. As this court has previously noted, in their complaint, the plaintiffs seek the following requested relief against the Navy, among other things:
they ask the court to strike down: the Navy’s alleged thirds policy; the Navy’s practice of placing more than one chaplain on chaplain promotion boards; the Navy’s practice of allowing the Chief of Chaplains to determine the makeup of a promotion board or a [Selective Early Retirement Board (“SERB”) ]; the Navy’s policy of identifying the faith group of each chaplain to be considered by promotion board or SERBs; and the Navy’s alleged endorsement of “an official liturgical General Protestant service.” In addition, the plaintiffs call for an end to the alleged “dominance of the Navy’s senior ranks and key billets by liturgical Protestant chaplains, out of all proportion to their actual percentages in the Navy,” as well as the over-representation of liturgical Christian chaplains in the entire Chaplain Corps. In essence, the plaintiffs ask the court for an order directing the Navy to bring both the entire Chaplain Corps and its senior officials “into line with the Navy’s religious demographics.”
Id. (citations to the plaintiffs’ complaint omitted).7 In short, the plaintiffs primarily seek declaratory and injunctive relief. If the court did not certify this case as a class action, there would be a substantial risk that if other potential class members brought separate actions, courts might render “inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct” for the Navy. FED.R.CIV.P. 23(b)(1)(A). The plaintiffs persuasively note that three other chaplain cases already exist addressing the same or similar issues.8 Pls.’ Mot. at 19. According to the plaintiffs, the federal courts in California dealing with these cases have already rendered somewhat different decisions on issues similar to those addressed in the case at bar. Id. at 19–20. The plaintiffs correctly point out that these courts’ “differing results impose different standards on the Navy.” Id. at 20. Clearly, the Navy needs to have only one system with uniform policies because it “is required to treat all class members alike.” Larionoff v. United States, 533 F.2d 1167, 1181 n. 36 (D.C.Cir.1976); Pls.’ Mot. at 18. Different results from different federal courts could well
6

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

lead to a scenario in which the Navy has to follow “incompatible standards of conduct.” FED.R.CIV.P. 23(b)(1)(A). For all these reasons, the court *13 determines that this litigation may proceed as a class action pursuant to Federal Rule of Civil Procedure 23(b)(1)(A).

7

The court’s January 10, 2002 Memorandum Opinion

granted the defendants’ motion to dismiss some of

these claims. Adair, 183 F.Supp.2d 31.

8

This includes the Chaplaincy case, which, as noted

before, has been consolidated with this case for the

purpose of resolving all pre-trial motions.

members of the class to opt out as per the D.C. Circuit’s reasoning in Eubanks, 110 F.3d at 91–96. The court will consider the parties’ positions on these issues as well.
IV. CONCLUSION For all these reasons, the court grants the plaintiffs’ motion for class certification. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously issued this 19 day of August, 2002.

D. Class Definition
Having determined that this lawsuit may proceed as a class action, the court must now define the specific class.9 Before determining whether to accept the plaintiffs’ requested definition of the class—e.g., all non-liturgical Christian chaplains who served in the Navy since fiscal year 1988—the court directs the parties to brief one discrete issue. Specifically, the court orders the parties to submit briefs not to exceed five pages double-spaced addressing this question: How should Judge Green’s August 17, 2000 Memorandum Opinion ruling that the chaplain plaintiffs could seek only prospective, and not remedial, relief affect the size of the class, if at all? The parties shall submit these briefs by September 20, 2002.

9

Once the court defines the class, the court will exercise

its discretion to require the plaintiffs to give notice to

all class members in a fashion to be determined after

consulting with the parties. FED.R.CIV.P. 23(d). The

court will also defer the issues of naming class

representatives and of whether it will allow any

ORDER
GRANTING THE PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
For the reasons stated in this court’s Memorandum Opinion separately and contemporaneously issued this ______ day of August, 2002, it is
ORDERED that the plaintiffs’ motion for class certification is GRANTED; and it is
FURTHER ORDERED that the court will define the specific class of plaintiffs after the parties each submit a brief not to exceed five pages double-spaced by September 20, 2002.
SO ORDERED.

7

 
 217 F.Supp.2d 7 (2002)
Robert H. ADAIR et al., Plaintiffs, v.
Gordon R. ENGLAND, Secretary of the Navy, et al., Defendants. Chaplaincy of Full Gospel Churches et al., Plaintiffs, v.
Gordon R. England, Secretary of the Navy, et al., Defendants.
Nos. Civ.A. 00-0566(RMU), Civ.A. 99-2945(RMU).
United States District Court, District of Columbia.
August 27, 2002.
8*8 Arthur A. Schulcz, Sr., Bradley L. Bolinger, Vienna, VA, for Plaintiffs.
Thomas E. Caballero, Michael Q. Hyde, U.S. Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION
URBINA, District Judge.
DENYING WITHOUT PREJUDICE THE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT;
DENYING WITHOUT PREJUDICE THE DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
I. INTRODUCTION
These cases come before the court on the parties' cross-motions for partial summary judgment. The plaintiffs, current and former Navy chaplains and an ecclesiastical endorsing agency for military chaplains, bring these suits alleging that the Navy's policies and practices favor one religious denomination over another in violation of the First Amendment's Establishment and Free Exercise Clauses, and in violation of the Fifth Amendment's Equal Protection Clause. Specifically, the plaintiffs charge that the hiring, retention, and promotion policies of the Navy Chaplain Corps demonstrate an unconstitutional endorsement of liturgical Christian sects over non -liturgical Christian sects.[1] For the reasons that follow, the court denies without prejudice both the plaintiffs' and the defendants' motions for partial summary judgment.

II. BACKGROUND
Although the above-captioned cases are not consolidated for all purposes, the court has consolidated them for purposes of all pretrial pending motions.[2] In the Chaplaincycase, the plaintiffs are an endorsing agency for military chaplains and seven of its individual members. In the Adair case, the plaintiffs are 17 current and former non-liturgical chaplains in the Department of the Navy ("the defendants," "Navy," or "DON"). In both cases, the plaintiffs allege that the Navy has established and maintained an unconstitutional religious quota system for promotion, assignments, and retention of Navy chaplains, in violation of both the Establishment Clause and the Fr ee Exercise Clause of the First Amendment, and the Equal Protection Clause of the Fifth Amendment. Specifically, the plaintiffs allege that the Navy's policies and practices favor liturgical Christian chaplains over non-liturgical Christian chaplains.[3]
9*9 On January 10, 2002, the court issued a Memorandum Opinion granting in part and denying in part the defendants' motion to dismiss. Adair v. England, 183 F.Supp.2d 31 (D.D.C.2002). The court held that: (1) strict scrutiny applies to the plaintiffs' First Amendment and equal protection claims; (2) the plaintiffs did not need to exhaust their administrative remedies before filing suit in federal court; (3) the plaintiffs had stated a claim that the Navy's hiring and retention policies violate the Establishment Clause; (4) the Navy's practices of allowing chaplains to rate other chaplains for promotions and of allowing multiple chaplains to serve on promotion boards do not violate the Establishment Clause; (5) the plaintiffs had stated a claim that the Navy's practice of displaying the religious identity of chaplains up for promotion violates the Establishment Clause and Free Exercise Clause; (6) the Navy's practice of having only "General Protestant" religious services could violate the Establishment Clause; and (7) the plaintiffs had stated a free speech claim. Id.
The court has become very well acquainted with these cases. At a status hearing on February 7, 2002, the court heard from the parties about how they wished to proceed in these cases and then set forth a schedule for the briefing of various issues. Order dated Feb. 7, 2002. Since that time, the court has issued several rulings. First, the court denied without prejudice the plaintiffs' motion for a preliminary injunction to prevent the government from either censoring or compelling their speech by requiring them to recruit new members to the Navy's Chaplain Corps. Adair v. England, 193 F.Supp.2d 196 (D.D.C.2002). The court concluded that it lacked jurisdiction over the claims that the plaintiffs set forth in their motion for a preliminary injunction since neither complaint included these allegations. Thus, the court gave the plaintiffs leave to supplement their complaints. [4] Id. Second, the court denied the plaintiffs' motion for a preliminary injunction to delay the Navy's chaplain promotion boards until after the court ruled on the plaintiffs' motion for partial summary judgment on the constitutionality of those boards. Adair v. England, 217 F.Supp.2d 1 (D.D.C.2002). Third, the court denied the plaintiffs' motion for relief from judgment from two aspects of the court's January 10, 2002 Memorandum Opinion. Adair v. England, 209 F.R.D. 1 (D.D.C.2002). Fourth, the court granted the plaintiffs' motion for class certification. Adair v. England,209 F.R.D. 5 (D.D.C. 2002).

Despite the fact that the parties have not begun discovery in these cases, they decided to file motions for partial summary judgment on certain issues. The cross-motions for partial summary judgment became ripe in June 2002.
The plaintiffs move for partial summary judgment on issues related to the hiring and promotion of chaplains, challenging the legality of: (1) the policies by which the Navy hires and allocates chaplain accessions[5] among faith groups; (2) the Chaplain Corps structure resulting from these policies, (3) the identification of a chaplain's faith group to chaplain promotion board members, and (4) the Chaplain 10*10 Corps' promotion system. Pls.' Mot. at 1. In short, the plaintiffs present evidence that there are substantially more liturgical Christians in the Chaplain Corps than there are in the Navy as a whole, and argue that the Navy has unconstitutionally maintained a thirds policy, whereby liturgical Christians, non-liturgical Christians, and Catholics each receive one-third of the Chaplain Corps slots in hirings and promotions. Id. at 5-6, 8 (citing Pls.' Exs. 5, 6).
Before fiscal year 1988, the Navy used objective criteria based on national religious demographics to determine chaplain accessions and recruiting goals, according to the plaintiffs. Id. at 7. The goal was to have the Chaplain Corps reflect the United States' religious makeup. Id. In fiscal year 1988, however, the Navy allegedly adopted subjective quotas—the thirds policy—based on concerns about a shift to a non-liturgical majority. Id.
More specifically, the plaintiffs charge that the thirds policy still prevails in accessions but not in promotions because of the consistent shortage of Catholics. Pls.' Mot. at 33. The plaintiffs do assert, however, that a quota system still exists for promotions. Id."The gross over-representation of Protestant liturgical chaplains takes place at every rank. For example, in 2001, Protestant liturgicals were 7.46% of DON but in the Chaplain Corps they were 34.57% of Captains, 36.36% of Commander [sic], 32.02% of [Lieutenant Commanders], and 37.50% of Lieutenants." Id. at 9 (citing Pls.' Ex. 6).
The parties share a rare point of factual agreement when the defendants admit that until April 2000, the Navy provided a promotion candidate's religious denomination to chaplain promotion board members in the form of a three-digit Additional Qualification Designator ("AQD") code. Pls.' Reply at 29; Defs.' Mot. at 13, Ex. 19 ¶¶ 4-5. The plaintiffs charge that the practice of revealing faith group identifiers effectively tainted the chaplain promotion boards that had access to the AQD codes and thus they ask the court to rescind some of the actions of these boards. Pls.' Reply at 30. The defendants counter that the plaintiffs have failed to provide any evidence that the Nav y's previous display of AQD codes to promotion boards was a purposeful attempt to facilitate discrimination or any evidence that those codes were used to discriminate. Defs.' Reply at 14.
Firing back in their cross-motion, the defendants state that the Chaplain Corps "does not currently establish accession targets based on faith group categories, nor does it otherwise take into account faith group in making accession decisions. In addition, even when the Chaplain Corps did set such

`targets,' those targets served as goals and were never quotas." Defs.' Mot. at 1. The defendants contend that there is no basis to conclude that those targets "limited the accession of any chaplains. At least since 1990, the Navy has never denied accessions to a chaplain because of that chaplain's faith group." Id. In addition, the defendants note that since fiscal year 2001, "the Chaplain Corps has not broken down its accession goals by faith group. Religious denomination and/or faith group played no part in establishing the accessions plans for fiscal years 2001 and 2002." Id. at 8-9.
As of July 2001, the Navy submits that its Chaplain Corps consisted of 854 chaplain officers, of whom 298 (or 34.89 percent) were liturgical Christians, 338 (or 39.58 percent) were non -liturgical Christians, and 171 (or 20.02 percent) were Roman Catholic. Id. at 3-4 (citing Defs.' Statement of Material Facts as to Which 11*11 There Is No Genuine Issue).[6]
Moreover, in terms of the plaintiffs' claims that liturgical Christian chaplains dominate chaplain promotion boards, the defendants state that beginning with fiscal year 2003, the chief of naval operations, with the approval of the Secretary the Navy, ordered that these boards (the first of which met in February 2002) be comprised of five unrestricted line officers (who are not members of the Chaplain Corps) and no more than two Chaplain Corps officers.[7] Defs.' Mot at 15.
In addition, of the 194 chaplain members of the 43 chaplain promotion boards from fiscal year 1994 to 2002, 69 were liturgical Christian, 62 were non-liturgical Christian, 46 were Roman Catholic, and 17 were Special Worship.[8] Id. Of the 43 chaplain promotion boards during this time frame, "there was a Roman Catholic chaplain on every board over this period except one. There was a liturgical Protestant chaplain on every board over this period except one. There was a non -liturgical chaplain member [on] every board except one for this period." Id. at 15-16.
In their efforts to defend the Corps' promotion system, the Navy proffers that during the 12 -year period for promotion boards for fiscal years 1991 to 2002, the Navy selected non -liturgical Christian chaplains for Captain, Commander, and Lieutenant Commander promotion boards at a rate of 53.1 percent, i.e., 53.1 percent of in-zone non-liturgical chaplains were selected by the promotion boards. Defs.' Ex. G. Liturgical Christian chaplains had a selection rate of 53.6 percent, and Roman Catholic chaplains had a 52.2 percent rate. Id. Because the plaintiffs "cannot rebut the evidence submitted by defendants that shows that non-liturgical Christian chaplains did not suffer discrimination in accessions, promotions, or in the structure of the Navy Chaplain Corps ... the [c]ourt should deny plaintiffs' motion and grant defendants' cross-motion for partial summary judgment." Defs.' Mot. at 2.
The court now turns to the analysis of the parties' cross-motions for partial summary judgment.
III. ANALYSIS
A. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 12*12 FED.R.CIV.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548;Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.
In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993). Rather, the nonmoving party must present specific facts that would enable a rea sonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).
B. The Plaintiffs Must Satisfy an Initial Burden Before the Court Applies Strict Scrutiny
In its January 10, 2002 Memorandum Opinion resolving the defendants' motion to dismiss, the court discussed at length the appropriate standard of review for these cases, holding t hat strict scrutiny would apply to the plaintiffs' claims that the Navy's policies and practices violate the Establishment and Free Exercise Clauses of the First Amendment and the Equal Protection Clause of the Fifth Amendment. Adair, 183 F.Supp.2d at 46-53. Now that the case has reached the summary judgment stage, the parties disagree on when the court should apply the strict scru tiny test.
The defendants argue that the plaintiffs first must give proof of actual discrimination before the defendant has to defend the Chaplain Corps' policies as narrowly tailored to further a compelling governmental interest. Defs.' Mot. at 24. They believe that the plaintiffs must prove the existence of

such discrimination before the burden of proof shifts back to the defendants and the court applies strict scrutiny. Id. According to the defendants, only after the plaintiffs have met their burden of satisfying the threshold inquiry—i.e., do the Chaplain Corps' policies actually discriminate against non-liturgicals or endorse the religious beliefs of liturgical Christians and Roman Catholics? —does the burden of proof shift to the defendants to justify the policies as narrowly tailored to meet a compelling governmental objective. Id. at 25.
For example, although the Navy admits that it displayed the faith group identifier codes to chaplain promotion boards before April 2000, the defendants maintain that this is not enough to establish denominational 13*13 discrimination in the promotion process because the plaintiffs have failed to show that the Navy used those codes to discriminate on the basis of religion. Id. at 39-40. In addition, the defendants aver that the mere fact that the Navy tracked the faith group category of incoming chaplains to monitor the Corps' composition does not trigger strict scrutiny. Defs.' Reply at 5. "The question is whether the Navy inappropriately use[d] that classification to discriminate among chaplains." Id.
As a procedural matter, the defendants submit that because the court's January 10, 2002 Memorandum Opinion addressed a motion to dismiss, the court had to accept the plaintiffs' facts as true and thus had to evaluate what the appropriate legal standard would be, presuming the plaintiffs' facts about the Navy's alleged religious preferences for liturgical Christians to be true. Defs.' Reply at 3 (citing Adair, 183 F.Supp.2d at 45-46). Now that the case has reached the summary-judgment stage, however, the defendants suggest that the plaintiffs may no longer rely on that presumption and first must demonstrate that the challenged policies discriminate on the basis of religion. Id.at 1, 3.
Conversely, the plaintiffs contend that the defendants' argument "completely disregards the [c]ourt's well-reasoned discussion of the applicable Supreme Court precedent that establishes strict -scrutiny as the proper review for the government policies challenged here under the Establishment, Free Exercise and Equal Protection Clauses." Pls.' Reply at 2. In other words, the Navy's claim that strict scrutiny "has not attached" yet and that it will attach only after the plaintiffs have shown that the challenged laws or policies are not neutral and of general applicability ignores the court's January 10, 2002 Memorandum Opinion. Id. at 3.
The plaintiffs note that the court has already pointed out that in cases in which the government allegedly prefers one religious denomination over another, the more demanding strict-scrutiny analysis applies. Id. (citing Adair, 183 F.Supp.2d at 48 (citingLarson v. Valente, 456 U.S. 228, 24647, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982))). In this case, the plaintiffs maintain that they "are not challenging facially neutral policies but policies based on religious classifications." Id. at 4. Thus, the non-liturgical Christian chaplains declare that an initial showing of a denominational preference is not the relevant Establishment or Free Exercise Clause test when religious classifications are at issue. Id. at 7.

For the most part, the court agrees with the defendants. As to the main issue, the defendants properly frame the procedural matter. In ruling on the motion to dismiss, the court must accept the plaintiffs' claims as true and thus the court ruled in its January 10, 2002 Memorandum Opinion that, accepting the plaintiffs' claims about the Navy's alleged use of denominational preferences, the court would evaluate these claims under strict scrutiny. Adair, 183 F.Supp.2d at 46-53. Now that the case has progressed to the summary-judgment stage, however, the court can grant a motion for summary judgment only if the moving party shows that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
Crucially, in Larson, the Supreme Court held that "when we are presented with a state law granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality." 14*14Larson, 456 U.S. at 246, 102 S.Ct. 1673 (emphasis added). The key point here is that the Court has instructed that there must be some initial showing that the challenged law or policy grants a denominational preference. Id. In Larson, the Court considered a section of Minnesota's Charitable Solicitations Act that provided that only those religious organizations receiving more than 50 percent of their funds from nonmembers were subject to the Act's registration and reporting requirements . Id. at 230, 102 S.Ct. 1673. In other words, because Minnesota's law explicitly distinguished between religious faiths, the Court held that strict scrutiny applied. Id. at 230, 246, 102 S.Ct. 1673.
Applying this precedent to the case at bar, the court notes that by merely showing, for example, that the Navy displayed faith group identifiers to chaplain promotion board members, the plaintiffs have not met their initial burden to persuade the court to apply strict scrutiny. See id. at 246, 102 S.Ct. 1673. Without any additional evidence, the display of the AQD codes amounts to merely a neutral practice that is of general applicability. Consequently, since the Navy's policy of displaying AQD codes in and of itself does not grant a preference to any religion, the court would not yet apply strict scrutiny. See id.
The next logical question, then, centers on what threshold the plaintiffs have to meet to show that a policy amounts to a denominational preference if the law or policy does not explicitly discriminate on the basis of religion. The Supreme Court addressed this issue in County of Allegheny v. Am. Civil Liberties Union., 492 U.S. 573, 608-09, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). The Court rejected another Justice's proposal that the plaintiffs in an Establishment Clause case should have to shoulder "a burden of `unmistakable' clarity" to demonstrate "government favoritism for spe cific sects in order to hold the favoritism in violation of the Establishment Clause." Id. at 608, 109 S.Ct. 3086 (disagreeing with Justice Kennedy's partial concurrence and partial dissent). Criticizing this more stringent proposal, the Court held:
Our cases, however, impose no such burden on demonstrating that the government has favored a particular sect or creed. On the contrary, we have expressly required `strict scrutiny' of practices

suggesting `a denominational preference,' in keeping with "`the unwavering vigilance that the Constitution requires'" against any violation of the Establishment Clause.
Id. (quotations omitted).
The importance of this discussion for the case at bar is that while the defendants are correct that the plaintiffs here bear the initial burden to show that the Navy's policies amount to denominational preferences in favor of liturgical Christians, the defendants are somewhat mistaken when they repeatedly state that the plaintiffs have the "burden to prove the threshold inquiry: [that] the Chaplain Corps instituted policies ... that actually discriminate against non-liturgicals" before the court can apply strict scrutiny.E.g., Defs.' Mot. at 60. The plaintiffs' burden is not that onerous. Rather, under Supreme Court precedent, the plaintiffs in this case bear the initial burden to show that the challenged Navy policies "suggest[ ] `a denominational preference....'" County of Allegheny, 492 U.S. at 608-09, 109 S.Ct. 3086. Accordingly, if the plaintiffs can demonstrate after discovery that some or all of the Navy's policies and practices suggest a denominational preference, then the court will apply strict scrutiny to those policies 15*15 and practices for which the plaintiffs have met this initial burden.[9]
C. Because There Are Genuine Issues of Material Fact in Dispute, the Court Denies Without Prejudice Both Parties' Cross-motions for Partial Summary Judgment
Because of the numerous disputed material facts in this case, the court denies without prejudice both parties' cross-motions for partial summary judgment. As noted previously, the parties in this case have yet to conduct discovery. A thorough discovery period will greatly assist the court in evaluating the merits of the parties' claims. Thus, when discovery has concluded, the court will allow the parties to refile their cross-motions for summary judgment.
The following are only some examples of the disputed material facts that would preclude a grant of summary judgment to either side. FED.R.CIV.P. 56(c). First, the plaintiffs present evidence that in 2001, for example, liturgical Christians comprised 7.46 percent of all Navy service members but that liturgical Christians made up 35.22 percent of the Chaplain Corps. Pls.' Mot. at 5 -6 (citing Pls.' Exs. 5, 6). The defendants take serious exception to the plaintiffs' use of these statist ics, insisting that the appropriate demographic to rely on is the pool of potential Navy accessions into the Chaplain Corps (i.e., the pool of people who obtain an ecclesiastical endorsement) rather than the religious population of the Navy as a whole. Defs.' Mot. at 34-35; Defs.' Reply at 9. Second, while the plaintiffs maintain that the Navy has employed a thirds policy in accessions, the defendants vehemently deny this suggestion. Pls.' Mot. at 25-27; Defs.' Mot. at 44; Defs.' Reply at 1-2. Third, the defendants' exhibit 10 lists the plaintiffs' alleged errors in accessions data for fiscal years 1990 through 2001. Defs.' Mot. at 32 (citing Defs.' Exs. 10-11). According to the defendants' data for these 12 years, the

plaintiffs overstate the number of Roman Catholic accessions by 94, liturgical Christian accessions by 50, Special Worship accessions by 21, but understate the number of non -liturgical Christian accessions by 80. Id. The plaintiffs object to the defendants' characterization that the plaintiffs erred in listing the number of accessions. Pls.' Mot. at 41.
Fourth, the defendants include a declaration from, among others, Captain Alston Shephard Kirk, who served as Director of Plans, Policy, Programming, and Management in the office of the Chief of Chaplains from May 1988 to August 1991. Defs.' Ex. 6 at 1. Captain Kirk admitted that while the Navy's accessions plan did indicate faith group cluster breakdowns, the number was strictly meant to serve as a guide to bring a diversity of faith groups into the Chaplain Corps, rather than as a quota. Id. at 2-4. The plaintiffs, however, ascribe a more nefarious intent to the policy of tracking accessions, contending that this practice helped the Navy maintain its thirds policy. Pls.' Reply at 11 12. Fifth, the defendants argue that because Navy officials have directed that all chaplain promotion boards now contain five line officers and two chaplains, "[t]his new promotion board composition eliminates any concern that chaplain promotions could be unduly influenced by a majority of chaplains from any given faith." Defs.' Mot. at 37-38; Defs.' Ex. 18 at 3. The plaintiffs disagree. Pls.' Reply at 23-24. Sixth, while the defendants admit that they used 16*16 the AQD codes up until April 2000, the parties dispute whether the Navy used these faith group identifier codes to unlawfully discriminate against non-liturgical Christian chaplains in promotions. Defs.' Mot. at 2, 36 -40; Pls.' Mot. at 39-45. Lastly, the panoply of "disputed" facts listed by the defendants in their "Rebuttal of Plaintiffs' Statement of Undisputed Facts" serves as a vivid example that there are still many points of disagreement. Defs.' Mot. at 17-23.
Because there are many genuine issues of material fact in dispute, the court denies without prejudice the parties' cross-motions for summary judgment. FED. R.CIV.P. 56(c). At this juncture, neither side has carried its burden to prevail on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Discovery will provide both parties with a valuable opportunity to strengthen, withdraw, or reevaluate their various claims.[10] Accordingly, the court will not address the parties' substantive arguments now (such as whether a proportional representation scheme is the best system for the Chaplain Corps) but will return to these issues after discovery has occurred, at which time the parties will have the opportunity to refile cross-motions for summary judgment.[11]
IV. CONCLUSION
For all these reasons, the court denies without prejudice both the plaintiffs' and the defendants' cross-motions for partial summary judgment. The court also denies without prejudice the plaintiffs' Rule 56 motion to strike declarations. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously issued this _____ day of August, 2002.
ORDER

DENYING WITHOUT PREJUDICE THE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT;
DENYING WITHOUT PREJUDICE THE DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
For the reasons stated in this court's Memorandum Opinion separately and contemporaneously issue this ____ day of August, 2002, it is
17*17 ORDERED that the plaintiffs' motion for partial summary judgment is DENIED without prejudice; and it is
FURTHER ORDERED that the defendants' motion for partial summary judgment is DENIED without prejudice; and it is
ORDERED that the plaintiffs' Rule 56 motion to strike declarations is DENIED without prejudice.
SO ORDERED.
[1] For an explanation of the differences betw een liturgical and non-liturgical Christian sects, see the court's Memorandum Opinion issued January 10, 2002. Adair v. England, 183 F.Supp.2d 31 (D.D.C.2002).
[2] In January 2001, the court's Calendar Committee transferred both of these cases from Judge June Green to this memb er of the court. In an order dated September 26, 2000, Judge Green accepted the parties' joint recommendation and consolidated the tw o cases for purposes of the pretrial pending motions. Order dated Sept. 26, 2000. The parties and the court have continued to treat these cases as consolidated for purposes of all pretrial motions.
[3] The court review s many factual issues herein for purposes of the cross-motions for partial summary judgment. For a more detailed discussion of the extensive factual and procedural history, and the numerous allegations in the Adair and Chaplaincy cases, see the court's January 10, 2002 Memorandu m Opinion. Adair, 183 F.Supp.2d at 35-45. For a detailed discussion of the factual background of the Chaplaincy case, see Judge Green's August 17, 2000 Memorandum Opinion at 2-7.
[4] Pursuant to Federal Rule of Civil Procedure 15(d), the plaintiffs did supplement their complaints on April 15, 2002.
[5] "The term accessions refers to individuals the Chaplain Corps brings into the Navy, either active duty or reserve, as commissioned officers during the current fiscal year." Defs.' Ex. 6 at 2.
[6] Despite the fact that the defendants list this statistical breakdow n in their section entitled "Statement of Material Facts a s to Which There Is No Genuine Issue," the plaintiffs do dispute this fact, taking issue w ith the defendants' categorization of denominations that fall into the liturgical and non-liturgical faith groups. Pls.' Ex. F. On a related note, the Navy also contends in its Statement of Material Facts as to Which There Is No Genuine Issue that the Chaplain Corps must be flexible in the representation of faith groups and cannot employ a proportional representation scheme. Id. at 6. The court reminds the parties that this does not qualify as an appropriate "fact" to be listed in a statement of facts not in dispute. LCvR 56. 1. This is not a fact. Indeed, this amounts to an argument on an issue that the plaintiffs vigorously contest.
[7] By "line community," the parties refer to the operational service members as opposed to service members from t he professional communities or the Chaplain Corps. Adair, 183 F.Supp.2d at 36 n. 3.
[8] For an explanation of w hich faith groups comprise the Navy's Special Worship category, see the court's Memorandum Opinion issued January 10, 2002. Adair, 183 F.Supp.2d 31.

[9] The court defers addressing the parties' dispute about how much of this show ing can be comprised of statistical ev idence until after discovery and the anticipated renew ed motions for summary judgment.
[10] For example, the defendants' ow n evidence show s that from 1996 to 2001, liturgical Christian accessions into the Corps w ere 44.1 percent of total accessions, 61.3 percent, 34.6 percent, 47.2 percent, 46.0 percent, and 20.0 percent respectively. Defs.' Ex. 10 at 2. These facts themselves raise several of questions: Does the Navy dispute the plaintiffs' figures that in 2000 and 2001, liturgical Christians made up 8.03 and 7.46 percent of all Navy service members but 35.25 and 35.22 percent of the Corps respectively? What w as the religious makeup of all Navy service members from 1996 to 2001 w hen liturgical Christians accounted for an average of 42.20 percent of all Corps accessions for this six -year period? Since the defendants argue strongly that the appropriate pool for a comparison is not all Navy service members, but the pool of people w ho received an ecclesiastical endorsement, w hat w ere the religious demographics for this pool of people? The answ ers to some of these questions w ill not only serve the parties w ell but w ill also help the court resolve the renew ed cross-motions for summary judgment.
[11] One final point merits attention. On July 17, 2002, the plaintiffs filed a motion to strike three declarations pursuant to Federal Rule of Civil Procedure 56(g) because the defendants allegedly submitted them in bad faith for the purpose of prolonging the litigation. Pls.' Mot. to Strike. Because these declarations in no w ay affect the court's decision at this time to deny w ithout prejudice the cross-motion motions for summary judgment, the court denies w ithout prejudice the plaintiffs' motion to strike the declarations and allow s the plaintiffs to refile this motion, if they so choose, at the end of discovery.

 
 Adair v. Johnson, 216 F.R.D. 183 (2003)

216 F.R.D. 183 United States District Court,
District of Columbia. Robert H. ADAIR, et al., Plaintiffs,
v. Hansford T. JOHNSON,1Acting Secretary of the
Navy, et al., Defendants.

1

When a public officer is a party to an action in his

official capacity and during its pendency ceases to hold

office, the officer’s successor is automatically

substituted as a party. FED R. CIV. P. 25(d)(1).

Accordingly, Hansford T. Johnson substitutes as the

proper defendant. Id.

Civil Action No. 00–0566 (RMU). | Document Nos. 52, 54, 75. | July 15, 2003.
Current and former Navy chaplains brought action alleging that hiring, retention, and promotion policies of Navy Chaplain Corps demonstrated unconstitutional endorsement of liturgical Christian sects over non-liturgical Christian sects. On plaintiffs’ motion to amend their complaint, the District Court, Urbina, J., held that: (1) amendment was not barred on futility grounds, and (2) Navy failed to show undue prejudice as result of plaintiffs’ delay.
Motion granted.
Attorneys and Law Firms
*184 Arthur A. Schulcz, Sr., Vienna, VA, for plaintiffs.
Michael Q. Hyde, Washington, DC, for defendants.
Opinion

MEMORANDUM OPINION URBINA, District Judge.

GRANTING THE PLAINTIFFS’ MOTION TO AMEND THE FIRST AMENDED COMPLAINT

I. INTRODUCTION
This class action comes before the court on the plaintiffs’ motion to amend their first amended complaint. The plaintiffs, current and former Navy chaplains, bring this suit alleging that the Navy’s policies and practices favor one religious denomination over another in violation of the First Amendment’s Establishment and Free Exercise Clauses, as well as the Fifth Amendment’s Equal Protection Clause. Specifically, the plaintiffs charge that the hiring, retention and promotion policies of the Navy Chaplain Corps demonstrate an unconstitutional endorsement of liturgical Christian sects over non-liturgical Christian sects.2 Citing new evidence, the plaintiffs now move to amend their complaint to allege that the Navy’s discrimination against its non-liturgical Christian chaplains began in 1977 rather than in the mid–1980s as previously alleged. Because the amendment is not futile, unduly delayed, or unduly prejudicial to defendants, the court grants the plaintiffs’ motion to amend.

2

For an explanation of the differences between liturgical

and non-liturgical Christian sects, see the court’s

January 10, 2002 Memorandum Opinion. Adair v.

England, 183 F.Supp.2d. 31 (D.D.C.2002).

II. BACKGROUND

*185 A. Factual Background3

3

A more complete factual background section can be

found in the court’s January 10, 2002 Memorandum

Opinion. See Adair, 183 F.Supp.2d. at 35–45.

In this case, the plaintiffs are current and former non-liturgical Christian chaplains in the Department of the Navy (“the Navy”).4 The defendants are the Secretary of the Navy, other Navy officials and the Navy. According to the plaintiffs, in the late 1960s and 1970s, America’s religious demographics began a substantial shift away from liturgical Protestant denominations toward the non-liturgical Christian churches, which the plaintiffs represent. Am. Compl. at 29. Until the mid to late 1980s, the Navy used a rough
1

Adair v. Johnson, 216 F.R.D. 183 (2003)

proportional-representation plan to determine how many chaplains it would hire from various religious denominations. Id. at 29. Under this system, the Navy allegedly allocated chaplains among the various faith groups based on objective criteria, such as the relative percentage represented by a religion in the total American population. Id.

4

In January 2001, the court’s Calendar Committee

transferred this case and the related case of Chaplaincy

of Full Gospel Churches v. England, Civil Action No.

99–2945, from Judge June L. Green to this member of

the court. Prior to the transfer, and pursuant to the

parties’ joint recommendation, Judge Green

consolidated the two cases for pretrial purposes. Order

dated Sept. 26, 2000.

The plaintiffs allege that starting in the late 1980s and continuing to the present, however, the Navy switched to a subjective policy, referred to as the “thirds policy,” under which the Navy allegedly reserves one-third of the Navy’s slots in the Chaplain Corps for liturgical Christians, one-third for Catholics, and one-third for members of every other religion. Id. at 29–30. Non-liturgical Christians are included in this last, catchall category. Id. at 30.

B. Procedural History
The plaintiffs filed their class-action complaint on March 17, 2000. Subsequently, on September 5, 2000, the plaintiffs amended their complaint as of right.5 On September 22, 2000, the defendants moved to dismiss the amended complaint. On January 10, 2002, the court issued a comprehensive memorandum opinion granting in part and denying in part the defendants’ motion to dismiss.6 Adair v. England, 183 F.Supp.2d. 31 (D.D.C.2002). The court concluded, inter alia, that the statute of limitations did not bar the plaintiffs’ claims for purposes of the motion to dismiss because the plaintiffs alleged that the defendants had fraudulently concealed the facts necessary to their causes of action. Id. at 54–55.

5

Prior to the filing of the plaintiffs’ first amended

complaint, the parties filed numerous motions,

including a motion to dismiss, two motions for partial

summary judgment, and a motion to hold in abeyance

(all of which the court disposed of in its Order dated

September 28, 2001). Because none of these motions is

considered a “responsive pleading” for purposes of

Federal Rule of Civil Procedure 15, the plaintiffs’

amendment was of right. FED.R.CIV.P. 15(a); James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 282–83 (D.C.Cir.2000).

6

The parties filed, and the court issued rulings on,

several additional motions not directly relevant to this

discussion. E.g., Adair v. England, 193 F.Supp.2d. 196

(D.D.C.2002); Adair v. England, 217 F.Supp.2d 1

(D.D.C.2002); Adair v. England, 209 F.R.D. 1

(D.D.C.2002); Adair v. England, 217 F.Supp.2d. 7

(D.D.C.2002).

Subsequently, on February 7, 2002, the court held a status hearing at which it issued an order setting a schedule for further submissions, including the plaintiffs’ motion for class certification. Order dated Feb. 7, 2002. On March 26, 2002, pursuant to the court’s order, the plaintiffs filed their motion for class certification. On August 19, 2002, the court granted the plaintiffs’ motion for class certification. Adair v. England, 209 F.R.D. 5 (D.D.C.2002).
On October 18, 2002, the plaintiffs moved to amend their first amended complaint to reflect purported new evidence about the true extent and duration of the Navy’s alleged discrimination against non-liturgical Christian chaplains. Pls.’ Mot. to Am. 1st Am. Compl. (“Pls.’ Mot.”) at 1. The court now addresses the plaintiffs’ motion.

III. ANALYSIS
A. Legal Standard for a Motion to Amend the Complaint
[1] [2] [3] Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading *186 once as a matter of course at any time before a responsive pleading is served. FED.R.CIV.P. 15(a). Once a responsive pleading is filed, however, a party may amend its complaint only by leave of the court or by written consent of the adverse party. Id.; Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The grant or denial of leave is committed to the discretion of the district court. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996). The court must heed Rule 15’s mandate that leave is to be “freely given when justice so requires.” FED.R.CIV.P. 15(a); Foman, 371 U.S. at 182, 83 S.Ct. 227; Caribbean
2

Adair v. Johnson, 216 F.R.D. 183 (2003)
Broad. Sys., Ltd. v. Cable & Wireless P.L.C., 148 F.3d 1080, 1083 (D.C.Cir.1998). “If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman, 371 U.S. at 182, 83 S.Ct. 227. Denial of leave to amend therefore constitutes an abuse of discretion unless the court gives sufficient reason, such as futility of amendment, undue delay, bad faith, dilatory motive, undue prejudice, or repeated failure to cure deficiencies by previous amendments. Foman, 371 U.S. at 182, 83 S.Ct. 227; Caribbean Broad. Sys., 148 F.3d at 1083.
[4] An amended complaint is futile if it merely restates the same facts as the original complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a legal theory, or could not withstand a motion to dismiss. Robinson v. Detroit News, Inc., 211 F.Supp.2d 101, 114 (D.D.C.2002) (quoting 3 MOORE’S FED. PRAC. § 15.15[3] ); Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C.Cir.1996) (affirming the district court’s denial of leave to amend given the “little chance” that plaintiff would succeed on his claim); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C.Cir.1996).
[5] [6] With regard to undue delay, the text of Rule 15 does not prescribe a time limit on motions for leave to amend. FED.R.CIV.P. 15(a); Caribbean Broad. Sys., 148 F.3d at 1084. Accordingly, a court should not deny leave to amend based solely on time elapsed between the filing of the complaint and the request for leave to amend. Atchinson v. District of Columbia, 73 F.3d 418, 426 (D.C.Cir.1996) (citing Hayes v. New Eng. Millwork Distribs., Inc., 602 F.2d 15, 19 (1st Cir.1979)). Nor does the prolonged nature of a case affect whether the plaintiff may amend his complaint. Caribbean Broad. Sys., 148 F.3d at 1084 (concluding that the length of litigation is relevant only insofar as it suggests bad faith or prejudice). Rather, the court should take into account the actions of other parties and the possibility of resulting prejudice to the opposing party. Id.; Atchinson, 73 F.3d at 426.
To demonstrate such prejudice, the opposing party “must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the amendments been timely.” Dooley v. United Techs. Corp., 152 F.R.D. 419, 425 (D.D.C.1993) (quoting Foremost–McKesson Inc. v. Islamic Rep. of Iran, 759 F.Supp. 855, 858 (D.D.C.1991)). For example, prejudice may exist when allowing an amendment would necessitate reopening discovery at a relatively late stage in the proceedings. E.g., Societe Liz, S.A. v. Charles of the Ritz Group, Ltd., 118 F.R.D. 2, 4 (D.D.C.1987) (finding

prejudice when the motion to amend was filed just prior to the close of discovery, with trial fast approaching); Indep. Petrochemical Corp. v. Aetna Cas. & Sur. Co., 1987 WL 9232, at *2 (D.D.C. March 25, 1987) (finding prejudice when the proposed amendment would prolong discovery after the previously announced deadline). In addition, an amendment may cause prejudice if it bears only a tangential relationship to the complaint or changes the character of the litigation. Nat’l Treasury Employees Union v. Helfer, 53 F.3d 1289, 1295 (D.C.Cir.1995); Deasy v. Hill, 833 F.2d 38, 42 (4th Cir.1987). Finally, prejudice may exist “when the effect of the amendment is to impair the opposing party’s ability to present evidence.” Prince v. Suffolk County Dep’t of Health Servs., 1995 WL 144782, at *6 (S.D.N.Y. Apr.3, 1995).
B. The Court Grants the Plaintiffs’ Motion for Leave to Amend
In support of their motion to amend, the plaintiffs state that they recently received *187 new evidence that the Navy’s discrimination began not in 1988, but in 1977. Pls.’ Mot. at 5. The plaintiffs note that their amended complaint currently identifies the late 1980s as the point at which the Navy announced the thirds policy. Id. at 4–5. According to the plaintiffs, the new evidence they received—namely, an affidavit from a 1985 discrimination suit against the Navy, and documents produced by the Chiefs of the Chaplain Corps from 1979 to 1985—indicates that liturgical chaplains dominated the composition of the promotion boards before the mid–1980’s. Id. at 5, Exs. 4–8, 10. The plaintiffs suggest that this evidence bolsters their view that the Navy’s discriminatory practices began in 1977, when then-Chief J.J. O’Connor allegedly initiated a “stacking policy” of placing two Catholic chaplains on every chaplain promotion board. Id. at 5–6. Accordingly, the plaintiffs would like to amend their complaint to conform their allegations to the new evidence, and to redefine the period of discrimination (and therefore the size of the class to be certified) as beginning in 1977. Id. at 1.
The defendants oppose the plaintiffs’ motion to amend on grounds of futility, undue delay and undue prejudice. Defs.’ Opp’n to Pls.’ Mot. (“Defs.’ Opp’n”) at 1. First, the defendants assert that the plaintiffs’ proposed amendment would be futile because it is conclusively barred by the applicable statute of limitations, which allows claims against the United States only if brought within six years of the accrual of the cause of action. Id. at 4–5 (citing 28 U.S.C. § 2401(a)). Nor, according to the defendants, may the doctrine of equitable tolling save the amendment.7 Id.
3

Adair v. Johnson, 216 F.R.D. 183 (2003)

at 7–10. Second, the defendants claim that the plaintiffs’ failure to bring these allegations at or near the beginning of the action, despite every opportunity to do so, constitutes undue delay. Id. at 11–12. The defendants contend that adding allegations relating to the 1977–1986 period at this point in the litigation would cause them undue prejudice given the problems inherent in gathering evidence from so long ago. Id. at 12–13.

7

Equitable tolling is a doctrine whereby a court, in the

interests of justice, can suspend the normal running of

the statute of limitations to ensure that the plaintiff is

not, “by dint of circumstances beyond his control,

deprived of a reasonable time in which to file suit.”

Chung v. Dep’t of Justice, 333 F.3d 273, 277–79

(D.C.Cir.2003) (internal quotation marks omitted). A

plaintiff may invoke equitable tolling when a defendant

is found to have committed fraudulent concealment,

hiding from the plaintiff the basis of a cause of action.

Hohri v. United States, 782 F.2d 227, 246

(D.C.Cir.1986), vacated and remanded on other

grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51

(1987).

1. The Plaintiffs’ Proposed Amendment Is Not Futile
In asserting that the plaintiff’s proposed amendment is futile, the defendants cite to the six-year statute of limitations for claims against the United States, as set forth in section 2401(a) of title 28, United States Code. Defs.’ Opp’n at 4–5; 28 U.S.C. § 2401(a). Because the stacking policy ended in 1986, the defendants assert that the plaintiffs should have brought all claims stemming from the stacking policy before 1992. Defs.’ Opp’n at 5. In addition, the defendants argue at length that equitable tolling is not relevant here, as Congress never intended equitable tolling to apply to section 2401(a) and that even if Congress did, the court should not invoke equitable tolling here because the plaintiffs should have known of their cause of action long before this point. Id. at 7–10.
In its January 2002 opinion, the court addressed this very issue. Adair, 183 F.Supp.2d. at 54–55. Specifically, the court declined to dismiss the plaintiffs’ claims as time-barred by section 2401(a), noting that the plaintiffs had pled that the Navy fraudulently concealed crucial information, thereby preventing the plaintiffs from alleging an essential element of their claim. Id. at 54. The court noted that according to the D.C. Circuit, such fraudulent concealment tolls the statute of limitations until the time that a reasonably diligent plaintiff could have discovered the elements of his claim. Id. (citing

Hohri v. United States, 782 F.2d 227, 246 (D.C.Cir.1986), vacated and remanded on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987)).
*188 The defendants argue that in light of the Supreme Court’s decision in United States v. Brockamp, Hohri is no longer good law for the proposition that equitable tolling applies to section 2401(a) in cases alleging fraudulent concealment. Def.’s Opp’n at 7–8 (citing United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997)). In Brockamp, the Court concluded that equitable tolling did not apply to the statute of limitations established for tax refund claims. Brockamp, 519 U.S. at 354, 117 S.Ct. 849. As its rationale, the Court noted that the tax-refund statute set forth its time limitations in an “unusually emphatic” and “highly technical manner [that] cannot easily be read as containing implicit exceptions.” Id. at 350, 117 S.Ct. 849. The Court also noted that application of equitable tolling for the tax-refund statute of limitations would impose “serious administrative problems” on the Internal Revenue Service, which processed 90 million tax refunds a year. Id. at 352–53, 117 S.Ct. 849.
[7] The court is not persuaded, however, that Brockamp calls Hohri into question, as section 2401(a) is distinguishable from the tax-refund statute of limitations in Brockamp. In contrast to the tax-refund statute, section 2401(a) does not set forth its time limitations in an unusually emphatic or highly technical manner, and reading equitable tolling into section 2401(a) would not present the administrative havoc with which the Supreme Court was concerned in Brockamp. Clymore v. United States, 217 F.3d 370, 374 (5th Cir.2000) (holding in a post-Brockamp case that section 2401(a) is a “garden variety” limitations statute to which equitable tolling applies); see also Chung v. Dep’t of Justice, 333 F.3d 273, 276–77 (D.C.Cir.2003) (finding that equitable tolling applied to the Privacy Act given the absence of unusually emphatic or highly technical language in its limitations statute). Accordingly, following its earlier analysis, the court concludes that because fraudulent concealment equitably tolls section 2401(a), section 2401(a) does not bar the plaintiffs’ claims and the proposed amendment is not futile.8 James Madison, 82 F.3d at 1099; Clymore, 217 F.3d at 374; Adair, 183 F.Supp.2d at 55.

8

As noted in its previous opinion, the court will

reconsider the defendants’ argument regarding the

statute of limitations if the defendants raise it in a

motion for summary judgment after the close of

discovery. Adair v. England, 183 F.Supp.2d. 31, 55

(D.D.C.2002).

4

Adair v. Johnson, 216 F.R.D. 183 (2003)
2. The Defendants Have Not Demonstrated That the Plaintiffs’ Proposed Amendment Is Unduly Delayed or
Would Cause Prejudice
[8] The defendants contend that the plaintiffs’ proposed amendment is unduly delayed and would cause them undue prejudice. Defs.’ Opp’n at 11. They note that the plaintiffs filed and amended their complaint in 2000, and assert that a three-year delay in amending the complaint alone constitutes sufficient grounds for denial. Id. The defendants also assert prejudice from the loss of certain documentary evidence resulting from the passage of time since 1977. Id. at 12–13. Specifically, they note that the death of former Chief O’Connor in May 2000, two months after the plaintiffs filed their original complaint, deprives the litigants of a crucial witness. Id. at 12. In addition, the defendants claim that evidence concerning the denominational composition of chaplain promotion boards from 1977 to 1986 is becoming progressively harder to locate given the passage of time. Defs.’ Opp’n at 10 n. 4, 12.
The question before the court is whether the delay in this case would cause undue prejudice to the defendant. Caribbean Broad. Sys., 148 F.3d at 1084; Atchinson, 73 F.3d at 426. The court concludes that it would not. First, notwithstanding the extensive briefing by the parties over the past three years, this litigation is still at a relatively early stage. Cf. Societe Liz, 118 F.R.D. at 4. In contrast to the procedural posture of the cases cited by the defendants, in this case the parties have yet to launch discovery pursuant to a court schedule. Williamsburg Wax Museum v. Historic Figures, Inc., 810 F.2d 243, 247 (D.C.Cir.1987) (denying leave to amend the complaint in a six-year-old case after the court had granted summary judgment for the appellees); Mittleman v. United States, 997 F.Supp. 1, 3 (D.D.C.1998) (denying leave to amend the *189 complaint in a 12–year–old case after the court had granted summary judgment on virtually all claims for the defendants); see also Hoffman v. United States, 266 F.Supp.2d 27, 33, 2003 WL 21348333, at *4 (D.D.C. May 30, 2003) (denying leave to amend the complaint in a 20–year–old case after multiple district and appellate proceedings); Societe Liz, 118 F.R.D. at 4 (denying leave to amend in a case that had been pending for at least two years given that discovery had closed and trial dates had been set).
Second, it is not clear from the record that the amendment would impair the defendants’ ability to present evidence. Prince, 1995 WL 144782, at *6. Redefining the relevant

time period from the late 1980s to 1977 will increase the evidentiary demands placed on the defendants (and the plaintiffs), but that increase does not necessarily rise to the level of undue prejudice. Dooley, 152 F.R.D. at 425. From the record it appears that if the plaintiffs had included this time period at the time they filed their original complaint, the same evidence that the defendants contend is not available today likewise would not have been available then. Id. First, because the Navy consolidated its old Chaplain Corps records prior to the filing of the plaintiffs’ suit, any board-membership or other records that are missing as a result would have been missing at the start of this litigation. Pls.’ Reply at 15; Defs.’ Opp’n at 10 n. 4. Second, although former Chief O’Connor—a witness potentially as important to the plaintiffs as to the defendants—passed away three years ago, his death occurred just two months after the plaintiffs filed their complaint, making it unlikely that he could have been deposed before his death.9 Accord Havoco of Am., Ltd. v. Hilco, Inc., 750 F.Supp. 946, 959 (N.D.Ill.1990) (noting that the death of certain witnesses did not constitute prejudice sufficient to bar the amendment of the defendants’ answer because the witnesses would not have been available at the time of the original answer); McNeal v. Maritank Phila., Inc., 1999 WL 80268, at *10 (E.D.Pa. Feb.3, 1999) (finding that the death of an important witness was not prejudicial to the ability of a proposed new defendant to defend itself because the witness was equally important to the existing defendants). As a result, the court concludes that the defendants have not shown that the proposed amendment is unduly delayed or would cause them undue prejudice.10 Caribbean Broad. Sys., 148 F.3d at 1084; Atchinson, 73 F.3d at 426; Dooley, 152 F.R.D. at 425.

9

It also is not clear that former Chief O’Connor would

have been the “only person from whom the [defendant]

could have obtained any evidence regarding the

amended claim.” UNR Indus., Inc. v. Continental Ins.

Co., 623 F.Supp. 1319, 1325 (D.Ill.1985).

10

The plaintiffs’ proposed amendment also would

promote judicial economy by avoiding additional

lawsuits based on the same or similar claims. Childers

v. Mineta, 205 F.R.D. 29, 33 (D.D.C.2001) (concluding

that granting leave to amend and thereby combining

two civil actions would promote judicial economy); 3

MOORE’S FED. PRAC. § 15.15[1].

IV. CONCLUSION 5

Adair v. Johnson, 216 F.R.D. 183 (2003)
For the foregoing reasons, the court grants the plaintiffs’ motion to amend their complaint. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously issued this

15th day of July, 2003.

6

 
 276 F.Supp.2d 79 (2003)
CHAPLAINCY OF FULL GOSPEL CHURCHES, et al., Plaintiffs, v.
Hansford T. JOHNSON, Acting Secretary of the Navy, et al., Defendants. Robert H. Adair, et al., Plaintiffs, v.
Hansford T. Johnson, Acting Secretary of the Navy, et al., Defendants.
Civil Action Nos. 99-2945 (RMU), 00-0566(RMU).
United States District Court, District of Columbia.
August 4, 2003.
Arthur A. Schulcz, Sr., Vienna, VA, for Plaintiffs.
Michael Quenten Hyde, U.S. Department of Justice, Thomas E. Caballero, the United States Senate, Washington, DC, for Defendants.
MEMORANDUM ORDER
URBINA, District Judge.
DENYING WITHOUT PREJUDICE THE PLAINTIFFS' MOTION FOR DECLARATORY OR PARTIAL SUMMARY JUDGMENT
This class action comes before the court on the plaintiffs' motion for declaratory or partial summary judgment. The plaintiffs, current and former Navy chaplains, bring this suit against the Secretary of the Navy, other Navy officials, and the Navy alleging that the Navy's policies and practices — including the chaplain-selection process — favor certain religious denominations over others in violation of the First and Fifth Amendments to the Constitution.[1]
On May 15, 2003, the plaintiffs filed a motion for declaratory or partial summary judgment. They ask the court to find as a matter of law that alleged misconduct by the Na vy's chaplain-selection boards qualifies as self-concealing fraud, and that as a result the statute of limitations is tolled for claims arising out of such misconduct and the defendants bear the burden of proving otherwise. Pls.' Mot. for Decl. or Partial Summ. J. ("Pls.' Mot.") at 1. On June 10, 2003, the defendants responded with a motion asking the court to hold the plaintiffs' motion in abeyance or, in the alternative, to continue

consideration of the plaintiffs' motion until after the parties complete discovery. Defs.' Mot. to Hold Pls.' Mot. In Abeyance ("Defs.' Mot.") at 1-2.
According to the plaintiffs, summary judgment or declaratory relief would be helpful for two reasons. First, the plaintiffs anticipate that the defendants will raise a statute -of-limitations defense to the plaintiffs' claims. Pls.' Mot. at 2; Pls.' Opp'n at 1. To counter that defense, the plaintiffs have made clear that they plan to argue fraudulent concealment, which would equitably toll the statute of limitations. E.g., Pls.' Opp'n at 1. In the plaintiffs' view, summary judgment or declaratory relief as to whether the Navy's alleged misconduct qualifies as self-concealing fraud (a type of fraudulent concealment) would "enable the parties to effectively plan their litigation and d iscovery strategies." Pls.' Mot. at 2. Second, because the statute-of-limitations issue is implicated in two related motions, the plaintiffs argue that the requested relief would "facilitate resolution of major issues [in the two motions] now pending before the Court and hopefully speed . . . decisions [on those motions]." Id. at 1 (referring to the plaintiffs' motion to amend their first amended complaint and to the definition of the proposed class). Id. at 1.
The court concludes, however, that neither summary judgment nor declaratory relief is appropriate here.[2] Summary 81*81 judgment is merited when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R.CIV.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). The plaintiffs argue that because the secrecy of the chaplain-selection process is undisputed, the court can rule as a matter of law on "whether or not the characteristics of the secret nature of the chaplain selection board systems qualifies [sic] as self-concealing fraud." Pls.' Opp'n at 9, 14-15, 22, 24. But secrecy alone does not create a self-concealing fraud. Rather, a self-concealing fraud requires that the defendant "engage in some misleading, deceptive or otherwise contrived action or scheme, in the course of committing the wrong, that is designed to mask the existence of a cause of action." In re Vitamins Antitrust Litig., 2000 WL 1475705, at *2 (D.D.C. May 9, 2000) (quoting Hobson v. Wilson, 737 F.2d 1, 34 (D.C.Cir. 1984)). At this stage in the proceedings, however, the nature of the defendants' actions remains very much in dispute. Compare Pls.' Mot. at 7-9 with Defs.' Mot. at 16, 22; see Adair v. England, 217 F.Supp.2d 7, 15-16 (D.D.C.2002). Accordingly, although summary judgment may be appropriate after discovery closes, it is not appropriate at this point. Adair, 217 F.Supp.2d at 16.
Nor is declaratory relief warranted. Under the Declaratory Judgment Act, a court may declare the rights and other legal relations of any interested party where there exists an "actual controversy," defined as "a controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." 28 U.S.C. § 2201(a); Md. Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941); Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1073 (D.C.Cir.1998). Even if such a controversy exists, however, a district court has broad discretion to withhold declaratory

judgment. Wilton v. Seven Falls Co., 515 U.S. 277, 287, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (noting "the unique breadth of [a district court's] discretion to decline to enter a declaratory judgment"); Jackson v. Culinary Sch. of Wash., Ltd., 59 F.3d 254, 256 (D.C.Cir.1995) (stating that the Supreme Court "took great pains to emphasize the singular breadth of the district court's discretion to withhold declaratory judgment"). Here, assuming arguendo that an actual controversy exists, the court declines to issue a declaratory judgment on the current, partially developed record. Accord id. at 256 (concluding that declaratory relief based on an inadequate record would "border[] dangerously on an advisory opinion"); Riley v. Titus, 190 F.2d 653, 656 (D.C.Cir.1951)(finding that the same uncertainties in the record that preclude summary judgment also preclude declaratory judgment).
82*82 Accordingly, because neither summary judgment nor declaratory relief is appropriate, it is this 4th day of August, 2003,
ORDERED that the plaintiffs' motion [# 139] for declaratory or partial summary judgment is DENIED without prejudice; and it is
FURTHER ORDERED that the defendants' motion [# 140] to extend time to file an opposition or otherwise respond to plaintiffs' motion for declaratory or partial summary judgment is GRANTED nunc pro tunc; and it is
ORDERED that the defendants' motion [# 144] to hold in abeyance the plaintiffs' motion for declaratory or partial summary judgment or, in the alternative, for discovery is DENIED. SO ORDERED.
[1] For a detailed factual history, see Adair v. England, 183 F.Supp.2d. 31, 35-37 (D.D.C. 2002).
[2] The court has addressed this statute-of-limitations issue tw ice before. Adair v. England, 183 F.Supp.2d 31 (D.D.C.2002) (granting in part and denying in part the defendants' motion to dismiss); Adair v. Johnson, 216 F.R.D. 183 (D.D.C.2003) (granting the plaintiffs' motion to amend their first amended complaint). In both opinions, the court declined to decide the merits of the statute-of-limitations issue given the procedural posture of the case, and noted that the defendants may raise the statute-of-limitations defense once the parties have completed discovery.Adair, 183 F.Supp.2d. at 55. The court makes the same point once again today.
As noted, the plaintiffs argue that their motion w ould "facilitate resolution of major issues" before the court "and hopefully speed their decisions." Pls.' Mot. at 1 (referring to the plaintiffs' motion to amend their first amended complaint and to the definition of the proposed class). Not so. First, the court already resolved one of the motions w ithout resorting to summary or declaratory judgment. Adair, 216 F.R.D. 183. Second, filing additional motions — and then calling chambers to inquire about those motions — arguably slow s, rather than speeds, the resolution of this action. Over the past tw o years, the court has issued memorandum opinions on at least seven dispositive motions filed by the parties. E.g., Adair, 183 F.Supp.2d 31; Adair v. England, 193 F.Supp.2d. 196 (D.D.C. 2002);Adair v. England, 217 F.Supp.2d 1 (D.D.C.2002); Adair v. England, 217 F.Supp.2d. 7 (D.D.C.2002); Adair v. England, 209 F.R.D. 1 (D.D.C.2002); Adair v. England, 209 F.R.D. 5 (D.D.C.2002); Adair, 216 F.R.D. 183. Yet more motions are w aiting in the w ings. The court's patience is beginning to w ear thin.

 
 276 F.Supp.2d 82 (2003)
CHAPLAINCY OF FULL GOSPEL CHURCHES et al., Plaintiffs, v.
Hansford T. JOHNSON, Acting Secretary of the Navy, et al., Defendants. Robert H. Adair et al., Plaintiffs, v.
Hansford T. Johnson, Acting Secretary of the Navy, et al., Defendants.
Civil Action Nos. 99-2945 (RMU), 00-0566(RMU).
United States District Court, District of Columbia.
August 14, 2003.
Arthur A. Schulcz, Sr., Vienna, VA, for plaintiff.
Michael Q. Hyde, U.S. Dept. of Justice, Washington, DC, for defendant.
*83 MEMORANDUM ORDER
RICARDO M. URBINA, District Judge.
DENYING THE PLAINTIFFS' PETITION FOR A WRIT OF MANDAMUS
This class action comes before the court on the plaintiffs' petition for a writ of mandamus and the defendants' motion to strike or, in the alternative, to dismiss that petition. The plaintiffs, current and former Navy chaplains, bring suit against the Secretary of the Navy ("the Secretary"), other Navy officials, and the Navy alleging that the Navy's policies and practices — including its chaplain accession and promotion process — favor certain religious denominations over others in violation of the First and Fifth Amendments to the Constitution.[1]
On November 25, 2002, the plaintiffs filed a petition for a writ of mandamus. The impetus for the petition is the allegedly illegal recall to active duty of Commander John Lyle ("CDR Lyle"), a liturgical (Catholic) Naval Reserve chaplain. Pls.' Pet. for a Writ of Mandamus ("Pls. ' Pet.") at 2. The plaintiffs assert that according to the Navy's own regulations, CDR Lyle was not qualified for the active -duty position to which the Navy assigned him. Id. at 4-14. In recalling CDR Lyle, therefore, the defendants allegedly engaged in a deliberate conspiracy — involving the use of improper accounting codes to, inter alia, disguise CDR Lyle as a "flight surgeon" — to circumvent Navy regulations and constitutional protections. Id. As a result of this alleged conspiracy, the plaintiffs contend that they

and non-Catholic chaplains suffered prejudice in the form of lost opportunities for promotion. Id. at 45, 14. Accordingly, the plaintiffs ask the court to direct the Secretary to (1) follow Navy regulations concerning the recall of Naval Reserve chaplains for active duty; (2) comply with government accounting, expenditure and financial reporting standards; (3) investigate waste, fraud and abuse arising from the Secretary's alleged violations of Navy regulations; and (4) recoup the funds the Secretary allegedly wasted as a result of these alleged violations. Id. at 1.
In response to the plaintiffs' petition, the defendants filed a motion to strike or, in the alternative, to dismiss that raises several jurisdictional challenges. First, the defend ants claim that the petition amounts to an unauthorized "pleading" that the court should strike because neither the Adair nor the Chaplaincy complaints include the petition's allegations. Defs.' Mot. to Strike ("Defs.' Mot.") at 6 10 (citing FED.R.CIV.P. 12(f)). Second, the defendants assert that this court lacks subject -matter jurisdiction because the plaintiffs' petition asks the court to compel the defendants to perform actions that are discretionary rather than ministerial in nature. Id. at 10-13. Finally, the defendants claim that the plaintiffs lack standing to seek mandamus relief because the injury they allege is too generalized and attenuated. Id. at 14-17.
A writ of mandamus is "an extraordinary [remedy] . . . to be utilized only under exceptional circumstances." Haneke v. Sec'y of Health, Educ. & Welfare, 535 F.2d 1291, 1296 (D.C.Cir.1976). "The necessary prerequisites for this court to exercise its mandamus jurisdiction are 84*84 that (1) the plaintiff has a clear right to relief; (2) the defendant has a cle ar duty to act; and (3) there is no other adequate remedy available to the plaintiff." Swan v. Clinton, 100 F.3d 973, 977 n. 1 (D.C.Cir. 1996) (internal quotations omitted); see also Atl. Tele-Network, Inc. v. Inter-Am. Dev. Bank, 251 F.Supp.2d. 126, 131 (D.D.C.2003) (applying Swan test). The plaintiff bears the "heavy burden" of showing that its right to issuance of the writ is "clear and indisputable." In re Cheney, 334 F.3d 1096, 1102, 1107 (D.C.Cir.2003) (internal quotations omitted). Because these prerequisites are jurisdictional in nature, the plaintiff's failure to meet any one of the them deprives t he court of jurisdiction and thus is fatal to the plaintiff's request. Swan, 100 F.3d at 977 n. 1 (indicating that the three prerequisites go to the court's jurisdiction).
Because the plaintiffs have failed to meet their burden of demonstrating that there is no adequate remedy other than a writ of mandamus, the court concludes that it lacks jurisdiction over the plaintiffs' petition. Id.; In re Cheney, 334 F.3d at 1102; Cobell v. Norton, 240 F.3d 1081, 1094 (D.C.Cir.2001). The plaintiffs argue, and the court agrees, that the Adair and Chaplaincy complaints encompass the petition's allegations relating to CDR Lyle. Pls.' Pet. at 1, 12 -14, Pls.' Opp'n at 1, 710, 23. But if the plaintiffs' complaints include these allegations, the ongoing litigation in this court constitutes an alternative "adequate remedy" that deprives this court of jurisdiction over the plaintiffs' petition. Ransom v. Babbitt, 69 F.Supp.2d. 141, 149 (D.D.C.1999)(declining to exercise mandamus authority because the plaintiffs could bring suit without resort to the Mandamus Act); see also Borntrager v. Stevas, 772 F.2d 419, 420 (8th Cir.1985) (affirming the lower court's conclusion

that mandamus relief was unavailable to a plaintiff denied admission to the Supreme Court bar by the clerk because the plaintiff could seek Supreme Court review of the clerk's conduct).
The plaintiffs assert that no other adequate remedy exists, however, because the "fiscal year 04 promotion cycle will soon begin," and if the court permits the Navy to get away with the Lyle recall "it would be difficult if not impossible for the eligible plaintiffs in the class to receive an appropriate remedy." Pls.' Pet. at 19. Yet the plaintiffs themselves repeatedly characterize the Lyle recall as merely one example of the Navy's systemic discrimination against non -liturgical Christian chaplains outlined in the plaintiffs' underlying complaints. Id. at 1, 12-14; Pls.' Opp'n at 1, 7-10, 23. As the authors of the Adair and Chaplaincy complaints, the plaintiffs apparently believe the relief they seek in those complaints is adequate to remedy this alleged discrimination despite the fact that the Navy's promotion system continues to operate during the pendency of this litigation. Adair First Am. Compl.[2] at 52-61 (requesting various forms of declaratory and injunctive relief); Chaplaincy Second Am. Compl. at 42-49 (same). Why this particular allegation of Navy misconduct, out of the entire constellation of allegations that the plaintiffs level against the Navy in this litigation, merits the formidable weapon of mandamus is not clear.[3] 85*85 Cartier v. Sec'y of State, 506 F.2d 191, 199 (D.C.Cir.1974) (stating that mandamus is to be used "only in the clearest and most compelling cases"). The court agrees with the defendants that a remedy for the Lyle allegations must await final resolution on the merits of the plaintiffs' claims. Defs.' Reply at 11 -12.
Accordingly, it is this 14th day of August, 2003,
ORDERED that the plaintiffs' petition [# 123] for a writ of mandamus is DENIED; and it is
FURTHER ORDERED that the defendants' motion [# 127] to strike or, in the alternative, to dismiss the plaintiffs' petition is DENIED.
SO ORDERED.
[1] In January 2001, the court's Calendar Committee transferred this case and the related case of Adair v. England, Civil Action No. 00-0566, from Judge June L. Green to this member of the court. Prior to the transfer, and pursuant to the parties' joint recommendation, Judge Green consolidated the tw o cases for pretrial purposes. Order dated Sept. 26, 2000. For a detailed factual history of the allegations underlying both complaints, see Adair v. England, 183 F.Supp.2d 31 (D.D.C. 2002).
[2] Pursuant to this court's July 15, 2003 Memorandum Opinion, the plaintiffs have filed a second amended complaint in Adair that supersedes their first amended complaint. Adair v. Johnson, 2003 WL 21659610 (D.D.C. July 15, 2003) (granting the plaintiffs leave to amend). The relief sought in the plaintiffs' second amended complaint is identical to that sought in the plaintiffs' first amended complaint.
[3] As one commentator has described it, mandamus is "the courtroom equivalent of rescuing a soldier from behind enemy lines." See http://w w w.law.com/jsp/article.jsp?id=XXXXXXXXXXXXX.

 
 Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (2003)

217 F.R.D. 250 United States District Court,
District of Columbia.
CHAPLAINCY OF FULL GOSPEL CHURCHES et al., Plaintiffs, v.
Hansford T. JOHNSON, Acting Secretary of the Navy, et al., Defendants.
Robert H. Adair et al., Plaintiffs, v.
Hansford T. Johnson, Acting Secretary of the Navy, et al., Defendants.
Civil Action Nos. 99–2945 (RMU), 00–0566 (RMU). | Sept. 2, 2003.
Current and former Navy chaplains brought action against the Secretary of the Navy, other Navy officials, and the Navy, alleging that the Navy’s policies and practices favored liturgical Christians over non-liturgical Christians in violation of the First and Fifth Amendments. On motion to compel testimony of chaplain selection-board personnel, the District Court, Urbina, J., held that: (1) testimony of former members of Navy chaplain selection-board with first-hand knowledge of various board deliberations was “relevant” within meaning of rule permitting discovery of relevant information; (2) government-misconduct exception to deliberative-process discovery privilege applied to requested testimony; and (3) discovery of selection-board personnel was required to be limited in a manner that was focused and minimized the possibility of harm to the selection-board process.
Motion granted.
Attorneys and Law Firms
*253 Arthur A. Schulcz, Sr., Vienna, VA, for plaintiffs.
Michael Q. Hyde, U.S. Department of Justice, Washington, DC, for defendants.
Opinion
MEMORANDUM OPINION
URBINA, District Judge.

GRANTING THE PLAINTIFFS’ MOTION TO COMPEL; DENYING OTHER PENDING
DISCOVERY MOTIONS; AND DIRECTING THE PARTIES TO SUBMIT A REVISED JOINT STATUS
REPORT

I. INTRODUCTION
This matter comes before the court on the plaintiffs’ motion to compel the testimony of Navy chaplain selection-board personnel. The plaintiffs, current and former Navy chaplains, bring this suit against the Secretary, other Navy officials, and the Navy alleging that the Navy’s policies and practices—including the selection-board process—favor liturgical Christians over non-liturgical Christians in violation of the First and Fifth Amendments to the Constitution. The plaintiffs now wish to depose former members of chaplain selection boards. The defendants contend that the requested testimony is not relevant and assert the deliberative-process privilege as well as an absolute or qualified statutory privilege. Because the requested testimony is relevant, the deliberative-process privilege does not apply, and no statutory privilege exists, the court grants the plaintiffs’ motion. The court also denies other pending discovery motions and directs the parties to submit a revised joint status report.

II. BACKGROUND1

1

The plaintiffs in both this action and the related case of

Adair v. Johnson allege that the Navy has established

and maintained an unconstitutional religious quota

system for promotion, assignments, and retention of

Navy chaplains, in violation of the First and Fifth

Amendments. Adair Second Am. Compl.; Chaplaincy

Second Am. Compl. Pursuant to the parties’ joint

recommendation, the court consolidated the two cases

for pretrial purposes. Order dated Sept. 26, 2000.

Because the plaintiffs filed their motion to compel in

the Chaplaincy case, however, the court draws the

factual history from the Chaplaincy complaint. For a

more detailed discussion of the factual backgrounds of

both cases, see Adair v. England, 183 F.Supp.2d 31

(D.D.C.2002) and Chaplaincy of Full Gospel Churches

v. Danzig, No. 99–2945, slip op. at 2–7 (Aug. 17,

2000).

The plaintiffs in this case allege that the Navy has 1

Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (2003)

established, promoted, and maintained religious quotas and other discriminatory practices in the Navy Chaplain Corps in violation of the First and Fifth Amendments. Second Am. Compl. at 2. According to the plaintiffs, until the 1980s, the Navy hired chaplains from various faith groups based on objective criteria, such as the relative percentage a religion represented in the total American population. Id. at 23–24. In response to a shift in America’s religious demographics away from liturgical Protestant denominations and toward non-liturgical Christian faith groups, however, the Navy allegedly abandoned its objective criteria and adopted a subjective “thirds policy.” Id. at 24. Under the thirds policy, the Navy allegedly reserved one-third of its Chaplain Corps slots for Catholics, one-third for liturgical Protestants, and one-third for members of all other religions (including non-liturgical Christians). Id.
[1] According to the plaintiffs, the Navy applied the thirds policy not only to accessions,2 but to promotions and retentions. Id. at 25. To identify officers for promotion and early retirement, the Navy uses selection boards that evaluate a chaplain’s capacity and potential for further service. Id. at 28, 30 (citing 10 U.S.C. § 612 et seq.). The plaintiffs allege that to maintain liturgical control of the Chaplain Corps, the Navy uses the promotion and early retirement selection boards to diminish non-liturgical chaplains’ opportunity for promotion and to “thin down” the number of non-liturgical chaplains at the *254 higher ranks by forcing them out of service. Id. at 24, 28, 32–33. In support of their allegations, the plaintiffs set forth various statistics and anecdotal evidence. E.g., id. at 4–9, 14–17, 19–20, Exs. 2–4, 6. The plaintiffs also point to a 1995 report (“the Ellis Report”) noting a “clear” and “disconcerting” institutional bias against nonliturgical chaplains in key Navy positions and a 1997 report (“the Stafford Report”) indicating that one promotion board “may have systematically applied a denominational quota system, perhaps to ensure balanced denominational representation across the Chaplain Corps.” Id. at 26–27, 32, Exs. 5, 8.

2

The term “accessions” refers to individuals the

Chaplain Corps brings into the Navy, either active duty

or reserve, as commissioned officers during the current

fiscal year. Adair v. England 217 F.Supp.2d 7, 9 n. 5

(D.D.C.2002) (quoting the defendants’ submission).

The plaintiffs filed their complaint in November 1999. Two years later, in January 2001, the court’s Calendar Committee transferred this case and the related case of Adair v. Johnson, Civil Action No. 00–0566, to this member of the court. On January 10, 2002, the court

issued a comprehensive memorandum opinion granting in part and denying in part the defendants’ motion to dismiss both consolidated cases. Adair v. England, 183 F.Supp.2d 31 (D.D.C.2002). The court concluded, inter alia, that the plaintiffs had successfully stated a claim that the defendants’ policies and practices violated the Constitution.3 Id.

3

Since then, the court has issued rulings on several

additional motions. E.g., Chaplaincy of Full Gospel

Churches v. Johnson, 276 F.Supp.2d 82, 2003 WL

21940397 (D.D.C. Aug.14, 2003); Chaplaincy of Full

Gospel Churches v. Johnson, 276 F.Supp.2d 79, 2003

WL 21783173 (D.D.C. Aug.4, 2003); Adair v. Johnson,

216 F.R.D. 183 (D.D.C.2003); Adair v. England, 217

F.Supp.2d 7 (D.D.C.2002); Adair v. England, 209

F.R.D. 5 (D.D.C.2002); Adair v. England, 209 F.R.D. 1

(D.D.C.2002); Adair v. England, 217 F.Supp.2d 1

(D.D.C.2002); Adair v. England, 193 F.Supp.2d 196

(D.D.C.2002).

On October 29, 2002, the plaintiffs filed their motion to compel the testimony of Navy chaplain selection-board personnel.4 They contend that the testimony of selection-board personnel is material to their claims, but that the Navy has refused to allow such personnel to testify on the grounds that the proceedings of a selection board “may not be disclosed to any person not a member of the board.” Pls.’ Mot. to Compel (“Pls.’ Mot.”) at 1 (citing 10 U.S.C. § 618(f)). On May 1, 2003, the plaintiffs filed a motion asking the court to find that the defendants have waived their opposition to the plaintiffs’ motion to compel, or, in the alternative, to allow them to file their waiver motion as a supplemental pleading.5 Pls.’ Waiver Mot. The plaintiffs also filed a motion to alter the limits for the number of depositions and interrogatories, motions to refer the motion to alter and future discovery motions to a magistrate judge, and a motion to vacate existing discovery dates. The court turns first to the plaintiffs’ motion to compel, and then to the remaining discovery motions.

4

Although the title of the plaintiffs’ motion refers only

to chaplain promotion boards, the text of the motion

refers to chaplain selection boards generally. Pls.’ Mot.

at 1 (referring to the need for the testimony of those

associated with “chaplain selection boards”), 2

(requesting the release of those associated with

“chaplain selection boards... includ[ing] promotion,

selective early retirement ... and other statutory

boards”). Like the defendants, the court therefore

assumes that the plaintiffs seek discovery of all

chaplain selection boards. Defs.’ Opp’n at 2 n. 3.

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Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (2003)

5

The plaintiffs style their motion as a “Notice of

Defendant’s [sic] Waiver of Opposition to Plaintiffs’

Motion for an Order Compelling the Secretary of the

Navy to Release Board Personnel from Their Oath of

Secrecy or in the Alternative a Motion to File a

Supplemental Pleading.” Pls.’ Waiver Mot. at 1.

III. ANALYSIS

A. Legal Standard for a Motion to Compel6

6

In this case, although the plaintiffs do not style their

motion as a motion to compel, everything about their

motion is characteristic of a Rule 37 motion to compel.

FED.R.CIV.P. 37(a). Specifically, the plaintiffs seek to

compel certain disclosures by the defendants. Pls.’ Mot.

at 1; accord FED.R.CIV.P. 37(a)(2). In addition,

following Rule 37 procedures, the plaintiffs “have

requested on several occasions that the Secretary

release board members from their oath [and the] Navy

has refused, necessitating this motion.” Pls.’ Mot. at

1–2; accord FED.R.CIV.P. 37(a)(2). Accordingly, the

defendants view the motion as a Rule 37 motion to

compel, and the court joins them in that view. E.g.,

Defs.’ Opp’n at 32 & Ex. H.

[2] Under Federal Rule of Civil Procedure 37(a), a party may move the court in *255 which the action is pending for an order compelling disclosure. FED.R.CIV.P. 37(a). The party must certify that the movant has conferred in good faith with the party refusing disclosure in an effort to avoid court action. Id. If the court grants the motion to compel, the court “shall, after affording an opportunity to be heard, require the party ... whose conduct necessitated the motion ... to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees.” Id. 37(a)(4); see also Standing Order ¶ 9. This award of expenses is intended to “deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists.” Cobell v. Norton (“Cobell I”), 213 F.R.D. 16, 29 (D.D.C.2003) (quoting FED.R.CIV.P. 37(a)(4) advisory committee’s note).
[3] A court may not award Rule 37 expenses, however, if it finds, inter alia, that “the opposing party’s nondisclosure, response, or objection was substantially justified.” FED.R.CIV.P. 37(a)(4). An opposing party’s objection qualifies as “substantially justified” if “there is a genuine

dispute or if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); Cobell v. Norton (“Cobell II”), 213 F.R.D. 48, 61 (D.D.C.2003); see also 8A FED. PRAC. & PROC. § 2288 (stating that an objection to a motion is substantially justified “if the motion raised an issue about which reasonable people could genuinely differ on whether a party was bound to comply with a discovery rule”); accord Pub. Citizen Health Research Group v. Young, 909 F.2d 546, 552 (D.C.Cir.1990) (stating, in the context of the Equal Access to Justice Act, that the question “is whether there was a reasonable basis in fact and law for the government’s litigating position”).
[4] A trial court enjoys broad discretion in choosing a sanction under Rule 37. Sturgis v. Am. Ass’n of Retired Persons, 1993 WL 518447, at *1 (D.C.Cir.1993) (per curiam). That said, “[t]he central requirement of Rule 37 is that any sanction must be just.” Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C.Cir.1996).
B. The Parties’ Arguments
The defendants advance three arguments in opposition to the plaintiffs’ motion to compel. First, the defendants argue that the testimony the plaintiffs seek is not relevant in light of the statistical evidence before the court, and thus is not discoverable under Federal Rule of Civil Procedure 26(b). Defs.’ Opp’n at 5–16 (citing FED.R.CIV.P. 26(b)(1)). Second, the defendants contend that even if the requested testimony is relevant, it is absolutely protected from disclosure pursuant to 10 U.S.C. § 618(f), the statute barring disclosure of selection-board deliberations. Id. at 16–19. Finally, the defendants state that even if section 618(f) does not act as an absolute bar to discovery, the requested testimony is protected by a qualified statutory privilege or the deliberative-process privilege because the government’s interest in maintaining confidentiality of board deliberations far outweighs the plaintiffs’ need for the requested testimony. Id. at 19–31.
The plaintiffs counter each of these arguments. Marshaling statistical evidence of their own, the plaintiffs assert that the testimony they seek is relevant under Rule 26(b). Pls.’ Reply at 2–10. Moreover, according to the plaintiffs, section 618(f) does not serve as an absolute bar to disclosure for purposes of discovery. Pls.’ Mot. at 8–9; Pls.’ Reply at 11–13. Nor, in the plaintiffs’ view, does a qualified statutory privilege apply, as the plaintiffs’ need for the testimony outweighs any countervailing factors.
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Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (2003)

Pls.’ Mot. at 16–19. As for the deliberative-process privilege, the plaintiffs state that it cannot apply because the integrity of the deliberative process here—the Navy chaplain selection boards—is squarely at issue. Pls.’ Mot. at 5–8.
C. The Court Concludes That the Requested Testimony Is Relevant
1. Relevance Under Federal Rule of Civil Procedure 26(b)(1)
[5] [6] Rule 26(b)(1) authorizes discovery “regarding any matter, not privileged, that is relevant to the claim or defense of any party.” *256 FED.R.CIV.P. 26(b)(1). The term “relevance” is broadly construed, and “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id.; Food Lion, Inc. v. United Food & Comm’l Workers Int’l Union, 103 F.3d 1007, 1012 (D.C.Cir.1997); see also Smith v. Schlesinger, 513 F.2d 462, 473 n. 37 (D.C.Cir.1975) (noting that “a party may discover information which is not admissible at trial if such information will have some probable effect on the organization and presentation of the moving party’s case”). Put another way, “[a] showing of relevance can be viewed as a showing of need[, as] for the purpose of prosecuting or defending a specific pending civil action, one is presumed to have no need of matter not relevant to the subject matter involved in the pending action.” Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C.Cir.1984). That said, relevancy does not encompass discovery of information with “no conceivable bearing on the case.” Id. (citing 8 FED. PRAC. & PROC. 2d § 2008). A trial court enjoys considerable discretion over discovery matters. Id.; United States v. Krizek, 192 F.3d 1024, 1029 (D.C.Cir.1999).
2. The Testimony of Selection–Board Personnel Is Relevant Under Rule 26(b)(1)
[7] The plaintiffs seek to obtain testimony from former selection-board personnel with first-hand knowledge of various board deliberations. Pls.’ Mot. at 1–2 & Exs. 4–5. Both here and in the Adair case the plaintiffs claim that the Navy has established, promoted, and maintained religious quotas and other discriminatory practices favoring liturgical Christian chaplains over non-liturgical

chaplains in violation of the First and Fifth Amendments. See generally Second Am. Compl.; Adair Second Am. Compl. Throughout this litigation, the plaintiffs repeatedly have cited the selection-board process as a prime example of the Navy’s allegedly discriminatory practices. E.g., Second Am. Compl. at 27–28, 30–32; see also, e.g., Chaplaincy of Full Gospel Churches v. Johnson, 2003 WL 21940397, at *1 (D.D.C. Aug.14, 2003); Adair v. Johnson, 216 F.R.D. 183, 186–87 (D.D.C.2003); Adair v. England, 217 F.Supp.2d 7, 9–10 (D.D.C.2002); Adair v. England, 209 F.R.D. 5, 10 (D.D.C.2002); Adair v. England, 183 F.Supp.2d 31, 42 (D.D.C.2002). It is hard to argue that the testimony of former selection-board personnel with direct knowledge of board proceedings is not “relevant” and “reasonably calculated to lead to the discovery of admissible evidence” regarding alleged Navy discrimination against non-liturgical chaplains in those very proceedings. FED.R.CIV.P. 26(b)(1); Food Lion, 103 F.3d at 1012; accord Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 170, 174 (D.D.C.1999) (“Alexander I”) (granting the “Filegate” plaintiffs’ motion to compel testimony because their proposed questions were reasonably calculated to lead to the discovery of a White House connection to the release of Linda Tripp’s security information).
The defendants, however, attempt to argue the point. Specifically, the defendants contend that “anecdotal evidence” of board proceedings cannot prove the plaintiffs’ allegations of religious bias, and thus that the requested testimony cannot be relevant. Defs.’ Opp’n at 13–14 (listing cases holding that anecdotal evidence is insufficient to prove a pattern or practice of discrimination). But this logic would turn Rule 26 on its head by requiring the plaintiffs to prove their claim before permitting them to seek discovery. Although the defendants may believe that the plaintiffs’ evidence is insufficient to support their claims, “[d]iscovery is not to be denied because it relates to a claim or defense that is being challenged as insufficient.” 8 FED. PRAC. & PROC. CIV. 2d § 2008. Accordingly, the court concludes that the plaintiffs’ requested testimony is relevant within the meaning of Rule 26(b)(1). FED.R.CIV.P. 26(b)(1); Food Lion, 103 F.3d at 1012.
D. The Court Concludes that the Government–Misconduct Exception Bars Application
of the Deliberative–Process Privilege
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Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (2003)

1. The Deliberative–Process Privilege
[8] [9] [10] The general purpose of the deliberative-process privilege is to “prevent injury *257 to the quality of agency decisions.” Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 151, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). The three policy objectives underlying the privilege are (1) to encourage creative and candid discussions within an agency and thereby improve the quality of agency policy decisions; (2) to protect against premature disclosure of proposed policies before final adoption, and (3) to protect the integrity of the decision-making process by ensuring that officials are judged by their final decision, rather than for matters considered beforehand. Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 772–73 (D.C.Cir.1978). Toward that end, the privilege protects “documents and other materials that would reveal advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.” In re Sealed Case, 121 F.3d 729, 737 (D.C.Cir.1997) (quoting Sears, 421 U.S. at 150, 95 S.Ct. 1504). Accordingly, for the privilege to apply, the government must show that the material is both predecisional and deliberative. Id.
[11] [12] Because the deliberative-process privilege is a qualified privilege, it may be overcome by a sufficient showing of need by the party seeking discovery. Id. Once the government has asserted the privilege, the court must balance the party’s need against the harm that may result from disclosure, taking into account the relevance of the evidence, the availability of other evidence, the seriousness of the litigation and the issues involved, the role of the government in the litigation, and the possibility of future timidity by government employees. Id. at 737–38; First E. Corp. v. Mainwaring, 21 F.3d 465, 468 n. 5 (D.C.Cir.1994).
[13] [14] When there is any reason to believe that government misconduct has occurred, however, our court of appeals has made clear that the deliberative-process privilege disappears altogether. In re Sealed Case, 121 F.3d at 746; In re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d 1422, 1424 (D.C.Cir.1998) (noting that “if the plaintiff’s cause of action is directed at the government’s intent ... it makes no sense to permit the government to use the privilege as a shield”); see also Waters v. U.S. Capitol Police Bd., 216 F.R.D. 153, 162–63 (D.D.C.2003) (stating that “it is inconceivable” that Congress intended the deliberative-process privilege to apply to information bearing on whether an agency engaged in discrimination); Dominion Cogen D.C., Inc. v. District of Columbia, 878 F.Supp. 258, 268 (D.D.C.1995) (finding that the privilege

does not apply where the plaintiff’s allegations “place the deliberative process itself directly in issue”). Under this government-misconduct exception, the court does not engage in the usual balancing test, but simply concludes that the privilege does not “enter the picture at all.” In re Subpoena Duces Tecum, 145 F.3d at 1425; see also Alexander I, 186 F.R.D. at 177 (rejecting as “incorrect” the government’s argument that the balancing test applies in the face of identifiable government misconduct). To invoke the government-misconduct exception, the party seeking discovery must provide an adequate factual basis for believing that the requested discovery would shed light upon government misconduct. Judicial Watch of Fla. v. Dep’t of Justice, 102 F.Supp.2d 6, 15–16 (D.D.C.2000); Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 154, 164 (D.D.C.1999) (“Alexander II”).

2. The Plaintiffs Have Provided an Adequate Factual Basis for Their Belief Regarding Government Misconduct
[15] The defendants argue that the deliberative-process privilege protects the requested testimony because selection-board proceedings are both predecisional and deliberative. Defs.’ Mot. at 20–21. Moreover, the defendants assert that the government-misconduct exception does not apply because the plaintiffs have provided no “reason to believe” that the requested testimony would shed light on alleged Navy discrimination against non-liturgical chaplains.7 Id. at 22. *258 Specifically, the defendants contend that the plaintiffs’ statistics “bear out no systemic discrimination against non-liturgicals as a class.” Id. The plaintiffs dispute the defendants’ arguments, and point to evidence that they believe demonstrates the Navy’s misconduct. The plaintiffs cite to the Stafford Report, along with a 1999 report by the inspector general of the Department of Defense (“DoD IG report”) and a 1998 investigation by the inspector general of the Navy (“Navy IG report”), all of which the plaintiffs say raise questions about the impartiality of the chaplain selection boards. Pls.’ Mot. at 6, 10–13 & Ex. 2; Pls.’ Reply at 3. The plaintiffs also cite to various statistics that they believe demonstrate the application of the thirds policy to chaplain promotions. Pls.’ Mot. at 13–16 & Exs. 9–10.

7

As an aside, the defendants take issue with the

plaintiffs’ characterization of government misconduct

as an automatic exception to the deliberative-process

privilege. Defs.’ Mot. at 22 n. 9 (adopting the position

of the government defendants in Alexander I, 186

F.R.D. at 177). The defendants suggest that “the proper

5

Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (2003)

analysis of the deliberative process privilege would involve the court’s consideration of government misconduct as a factor in balancing of the interests, but not as an automatic exception to application of the deliberative process privilege.” Id. In light of the clear statements by our court of appeals, however, this court agrees with Judge Lamberth’s conclusion that the defendants’ suggestion is “simply incorrect.” Alexander I, 186 F.R.D. at 178.

Without addressing the merits of the plaintiffs’ claims, the court concludes that the plaintiffs have provided an adequate factual basis for their belief that the requested testimony will provide evidence of government misconduct. Alexander II, 186 F.R.D. at 165. The various reports and statistics cited by the plaintiffs are adequate at this stage to support a belief that the Navy engaged in discrimination against non-liturgical chaplains.8 Id. (finding that the inclusion of certain misinformation in draft responses to members of Congress about Filegate provided an adequate basis to believe that government misconduct had occurred); cf. Judicial Watch, 102 F.Supp.2d at 15–16 (holding that the plaintiff’s bare and unsupported allegation of misconduct by the Attorney General did not provide an adequate basis to believe that discovery would shed light on government misconduct). Because the plaintiffs have adequately provided a reason to believe that Navy misconduct has occurred, the deliberative-process privilege disappears and cannot prevent discovery of the requested testimony. In re Subpoena Duces Tecum, 145 F.3d at 1424; In re Sealed Case, 121 F.3d at 746.

8

The court’s conclusion that the plaintiffs’ statistics

provide an adequate basis for a belief in Navy

misconduct does not pass judgment on the relative

strengths of the parties’ statistics. Alexander II, 186

F.R.D. at 164–65 (distinguishing between proving

misconduct and providing a basis for a belief in

misconduct). The court is acutely aware of the

disagreements between the parties over the use and

accuracy of statistical data regarding, inter alia, Navy

chaplain accessions and promotions. E.g., Adair, 217

F.Supp.2d at 15. In fact, toward that end, the court has

stressed that “a thorough discovery period will greatly

assist the court in evaluating the merits of the parties’

claims.” Id.

E. The Court Concludes that Section 618(f) Does Not Bar Limited Discovery

1. Statutory Bans on Publication9

9

In their analysis, the parties cite to St. Regis and Women

in Science, two cases that analyze statutes barring

disclosure of confidential reports. Pls.’ Mot. at 8 (citing

St. Regis Paper Co. v. United States, 368 U.S. 208, 218,

82 S.Ct. 289, 7 L.Ed.2d 240 (1961) and Ass’n for

Women in Science v. Califano, 566 F.2d 339, 346

(D.C.Cir.1977)); Defs.’ Opp’n at 16–19 (same). In

contrast to section 618(f), however, the statutes at issue

in St. Regis and Women in Science focus on disclosure

of confidential reports received from citizens. Defs.’

Opp’n at 18; St. Regis, 368 U.S. at 218, 82 S.Ct. 289;

Women in Science, 566 F.2d at 343, 346. Because the

confidential-reports privilege is not at issue in this case,

however, the court instead looks to authority addressing

with statutes that bar the publication or disclosure of

information. E.g., Laxalt v. McClatchy, 809 F.2d 885,

887 n. 7 (D.C.Cir.1987) (examining Privacy Act

proscriptions on disclosure of records).

[16] [17] “It is well-settled in this circuit that general statutory bans on publication do not bar limited disclosure in judicial proceedings, including court-supervised discovery.” Laxalt v. McClatchy, 809 F.2d 885, 889 (D.C.Cir.1987). Two factors underlie this conclusion. First, full access by the courts and litigants to relevant information is “an important foundation for the achievement of justice by the courts in individual lawsuits.” Freeman v. Seligson, 405 F.2d 1326, 1348 (D.C.Cir.1968). Second, the purpose of statutory *259 publication bans is not to prevent discovery, but rather to prevent the broadcasting of sensitive information to the general public. Friedman, 738 F.2d at 1343–44. Moreover, our court of appeals has declined to infer a qualified privilege from statutory publication bans, given that “where Congress has thought it necessary to protect against court use of records [it] has expressly so provided by specific language.” Id. at 1343 (internal quotations omitted); see also Laxalt, 809 F.2d at 889 (stating that “we ... refuse[ ] to infer the creation of a qualified privilege from congressional silence”). Instead, Congress “must clearly and strongly indicate its intent to contradict [the] broad objective favoring disclosure in judicial proceedings.” Friedman, 738 F.2d at 1343 (internal quotations omitted).
[18] [19] [20] Although statutory publication bans do not bar discovery, they are relevant in determining the appropriate scope and manner of discovery. Laxalt, 809 F.2d at 889. The interests protected by statutory publication bans “reflect a congressional judgment that certain delineated categories of documents may contain sensitive data which warrants a more considered and cautious treatment.” Id. (quoting Friedman, 738 F.2d at
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Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (2003)

1344). Therefore, in exercising its supervision of discovery, a court “must accord the proper weight to the policies underlying these statutory protections, and compare them with the factors supporting discovery in a particular lawsuit.”10 Id. A court then may use traditional devices—such as protective orders or in camera inspection—to shape a discovery plan that will give effect to liberal discovery rules without threatening the interests protected by statutory publication bans. Id. (noting that “the courts can limit ... the persons having access to information, their freedom to discuss [that] information ... and the uses to which the information may be put”).

10

One court has interpreted Friedman’s “proper weight”

analysis as requiring the classic balancing of

confidentiality-vs.-need as a prerequisite to allowing

discovery to proceed. Gould, Inc. v. Mitsui Mining &

Smelting Co., Ltd., 139 F.R.D. 244, 246 (D.D.C.1991)

(citing Friedman, 738 F.2d at 1344). A close reading of

Laxalt reveals that the court’s “proper weight” analysis

serves not as a prerequisite to discovery, however, but

simply as an aid to the court in determining how to

exercise its traditional authority to limit disclosure.

Laxalt, 809 F.2d at 889–90 (stating that “a test of

necessity [is not] a prerequisite to initiating discovery

of records” and that “[t]he need to balance conflicting

interests is entirely different from the proposition ...

that [records] are exempt ... from civil discovery absent

a specific showing of need” (emphasis in original)).

2. Section 618(f) Does Not Bar Limited Disclosure in Judicial Proceedings
As noted, the statute at issue here is section 618, which governs military board deliberations for active-duty service members, including chaplains. 10 U.S.C. § 618. Section 618(f) states that “[e]xcept as authorized or required by this section, proceedings of a selection board convened under section 611(a) of this title may not be disclosed to any person not a member of the board.” Id. To comply with section 618(f), all selection-board personnel take an oath swearing or affirming that they “will not divulge the proceedings of this board except as authorized or required by the Secretary of the Navy or higher authority.” Pls.’ Mot. Ex. 1.
The defendants assert that section 618(f) creates a blanket prohibition against disclosure (including discovery) of selection-board proceedings. Defs.’ Opp’n at 16–17. Stressing Congress’ “clear direction that the deliberations of the boards be disclosed to no person not a member of the board,” the defendants state that section 618(f)

“addresses government information about the official conduct of military offices in a sensitive and important matter, and expressly protects that information to anyone, save the Secretary.” Id. at 18–19. Alternatively, the defendants argue that section 618(f) creates a qualified privilege, and that the plaintiffs’ need for the requested testimony does not outweigh the government’s interest in preventing its disclosure. Id. at 19, 26. The plaintiffs dispute both arguments. First, the plaintiffs state that section 618(f) does not create an absolute bar to discovery. Pls.’ Mot. at 8–9. Second, the plaintiffs contend that even if section 618(f) creates a qualified privilege, the court should extend the government-misconduct exception to section 618(f) and allow discovery. Id. at 9.
*260 [21] Following the directive of our court of appeals, the court looks to the plain language of section 618(f) to determine whether it creates an absolute or qualified privilege against discovery. Laxalt, 809 F.2d at 889; Friedman, 738 F.2d at 1343. Because section 618(f) does not contain specific language barring discovery, and because of the circuit’s emphasis on providing litigants full access to relevant information, the court concludes that section 618(f) does not create an absolute or qualified privilege barring discovery of selection-board proceedings. Id. The court therefore grants the plaintiffs’ motion to compel.
[22] Remaining before the court, however, is the relevance of section 618(f) in determining the appropriate scope and manner of discovery. Laxalt, 809 F.2d at 889. Toward that end, the court must weigh the policies underlying section 618(f) against the factors supporting discovery here. Id.
Looking first to the policies underlying section 618(f), the court notes that the legislative history of section 618(f), although somewhat sparse, indicates that Congress enacted the provision “[t]o encourage candid discussions free from outside interference.” S. REP. 102–482, at 2 (1992); accord Defs.’ Opp’n Ex. H (“England Decl.”) (stating that “[f]ree, uninhibited, and candid deliberations by selection boards are ... vital to the effective functioning of the selection board process” and that “[r]elease of information regarding these proceedings to the public will severly undermine the [Navy’s] ability to effectively operate its promotion and selective early retirement systems”). At the same time, the legislative history of the act that established section 618(f) as part of the selection-board process reveals Congress’ steadfast interest in ensuring a uniform and merits-based selection system. E.g., H.R. REP. 96–1462, at 3, 66–69 (1980), reprinted in 1980 U.S.C.C.A.N. 6333 (describing the new
7

Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (2003)

uniform selection-board procedures of the 1980 Defense Officer Personnel Management Act). Congressional pronouncements since then have emphasized the need to maintain “the integrity of a selection system that provides all officers with a fair opportunity to be selected on merit” and to “keep the promotion system fair and free from manipulation.” 133 CONG. REC. S10642–02 (daily ed. July 24, 1987) (statement of Sen. Nunn); see also S.REP. NO. 102–1, at 24 (1991) (indicating that “[t]he integrity of the promotion process is essential to the integrity of the officer corps”); S.REP. NO. 102–113 (1991) (stating that “[board] selections must be fair, impartial and based upon demonstrated potential instead of subjective criteria, and they must be seen as such by our officer corps”). Taken together, these actions indicate that Congress views section 618(f) as a means of promoting frank discussions among selection-board personnel, but does so in the context of ensuring the overall integrity of the armed forces selection system. Laxalt, 809 F.2d at 889.
Turning to the factors supporting discovery, the court notes that, given the confidentiality created by the oath, only selection-board personnel—the witnesses to the decision-making process—have direct knowledge of possible religious discrimination in the selection-board process. The defendants suggest that the plaintiffs instead pursue discovery regarding the Navy’s allegedly discriminatory intent by interviewing the Chaplain Corps leadership and regarding the Navy’s bias by testing the accuracy of the defendants’ promotion board statistics. Defs.’ Opp’n at 30. But these alternatives do not constitute direct evidence, and this court has already indicated that it would defer until after discovery its decision as to how much of the plaintiffs’ initial showing of a suggestion of denominational preference must be composed of statistical evidence. Adair, 217 F.Supp.2d at 15 n. 9.
Accordingly, the scope and manner of discovery in this case must take into account the defendants’ interest in preventing a chill in selection-board discussions, the defendants’ interest in maintaining integrity in selection-board proceedings, and the plaintiffs’ interest in direct evidence of possible religious discrimination. Laxalt, 809 F.2d at 889. The court therefore exercises its supervisory authority to permit the plaintiffs to conduct limited discovery of selection-board personnel in a manner that is focused and that minimizes the possibility of harm to the selection–board *261 process. Id. at 889–90. Rather than impose a discovery plan from above, however, the court directs the parties—who know their nature and extent of their interests far better than the court—to jointly propose a plan of discovery regarding the testimony of selection-board personnel.

Finally, because the court grants the plaintiffs’ motion to compel, Rule 37(a)(4) directs the court to require the defendants to pay reasonable expenses unless the defendants’ objection was “substantially justified.” FED.R.CIV.P. 37(a)(4). In this case, the court concludes that the defendants’ opposition to the plaintiffs’ motion to compel was substantially justified because “reasonable people could differ” on whether the defendants, having asserted a deliberative process or statutory privilege, were bound to comply with discovery rules.11 Pierce, 487 U.S. at 565, 108 S.Ct. 2541; accord In re Multi–Piece Rim Prods. Liability Litig., 653 F.2d 671, 680 (D.C.Cir.1981) (affirming the district court’s finding of substantial justification in part because of the subtlety of the legal issues presented). Accordingly, awarding reasonable expenses against the defendants would not be just and would not serve the rule’s purpose of deterring unwarranted discovery objections. Bonds, 93 F.3d at 808; Cobell I, 213 F.R.D. at 29; FED.R.CIV.P. 37(a)(4) advisory committee’s note.

11

The court also notes that the parties raised their

disagreement regarding discovery of selection-board

proceedings early on, giving the court ample advance

notice of the existence and nonfrivolous nature of the

dispute. E.g., Joint LCvR 16.3 Report dated Feb. 4,

2002.

F. The Court Denies Other Pending Discovery Motions and Directs the Parties to Submit a Revised
Status Report
The court now turns to the plaintiffs’ motion asking the court to find that the defendants have waived their opposition to the plaintiffs’ motion to compel, or, in the alternative, to allow them to file their waiver motion as a supplemental pleading. In this waiver motion, the plaintiffs raise two concerns. First, the plaintiffs theorize that the defendants have waived any privilege by propounding an interrogatory that seems to direct the plaintiffs (including those plaintiffs who served as selection-board personnel) to divulge selection-board proceedings in violation of both section 618(f) and their oath. Pls.’ Waiver Mot. at 2–11. Second, the plaintiffs state that as a result of the defendants’ actions, they face a Hobson’s choice of violating discovery rules or their oath. Id. at 10–11. In light of the court’s decision today, the plaintiffs’ motion is moot, and the court denies it as such.12
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Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (2003)

12

As an aside, the court notes that any Hobson’s choice

disappeared as soon as the plaintiffs consulted with the

defendants. Prior to the filing of the motion, the

defendants’ counsel attempted both orally and in

writing to clarify the disputed interrogatory. Defs.’

Resp. at 4 & Ex. A. These communications from the

defendants’ counsel should have resolved any dilemma

allegedly facing the plaintiffs as a result of the

defendants’ interrogatory.

As for the remaining discovery motions, the court denies without prejudice the plaintiffs’ motion to alter the limits for the number of depositions and interrogatories, along with the plaintiffs’ motions to refer that motion and future discovery motions to a magistrate judge.13 The court also denies as moot the plaintiffs’ motion to vacate the discovery dates set forth in the parties’ October 1, 2002 joint status report.14 In light of today’s action and the court’s recent decision granting the plaintiffs leave to amend their complaint, the court suspects that both the limits set forth in the plaintiffs’ motion to alter and the discovery dates set forth in the joint status report are obsolete.

13

On June 26, 2003, the court granted the parties’ request

to hold the plaintiffs’ motion to alter in abeyance until

the parties complied with the court’s Standing Order.

Order dated June 26, 2003.

14

Although the court has not issued a formal schedule for

discovery in this case, the parties established a

discovery schedule as part of their court-ordered

October 1, 2002 status report, and that schedule has

guided the parties’ efforts to date. Status Report dated

Oct. 1, 2002.

Accordingly, the court directs the parties to submit a revised joint status report that outlines not only the parties’ plan of discovery *262 regarding the testimony of

selection-board personnel (as described in part III.E.2 supra), but proposes an amended discovery schedule that takes into account the parties’ progress to date and the current posture of the case.15 Because both parties have indicated an eagerness to move forward on discovery, the court expects the parties to actively continue working on discovery matters as they draft their amended schedule. E.g., Defs.’ Resp. to Pls.’ Status Report & Mot. (“Defs.’ Resp.”) at 3 (stating that “[d]efendants oppose an infinite, unending discovery timetable that gives plaintiffs no incentive whatsoever to diligently pursue discovery and bring this matter to a decision on the merits”); Pls.’ Reply to Defs.’ Resp. at 2 (stating that “[d]elay [in discovery] only harms plaintiffs and helps the defendants”).

15

The court expects that in this effort, the parties will

stipulate to reasonable alterations to the deposition and

interrogatory limitations, and will resolve any

outstanding issues regarding expert disclosures.

Finally, to keep this case on track, the court puts the parties on notice that it expects a maximum of cooperation and a minimum of filings from the parties. Toward that end, the court will henceforth strictly enforce its Standing Order and the federal and local discovery rules, imposing sanctions when warranted.

IV. CONCLUSION
For the foregoing reasons, the court grants the plaintiffs’ motion to compel and denies other pending discovery motions. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 2nd day of September, 2003.

9

 
 Chaplaincy of Full Gospel Churches v. England, 221 F.R.D. 255 (2004)

221 F.R.D. 255 United States District Court,
District of Columbia.
CHAPLAINCY OF FULL GOSPEL CHURCHES et al., Plaintiffs, v.
Gordon R. ENGLAND et al., Defendants. Robert H. Adair et al., Plaintiffs, v.
Gordon R. England et al., Defendants.
Civ.A. Nos. 99–2945(RMU), 00–0566(RMU). | May 6, 2004.
Synopsis Background: In consolidated actions alleging that the Navy Chaplain Corps’ hiring, retention, and promotion policies favored liturgical Christian chaplains over non-liturgical Christian chaplains, in violation of the First and Fifth Amendments, plaintiffs moved for certification of final judgment as to the dismissal, 183 F.Supp.2d 31, of two of their claims.
[Holding:] The District Court, Urbina, J., held that just reason existed for delay in certification of final judgment as to claims that chaplains should not rate other chaplains and that more than one chaplain should not sit on a chaplain promotion board.
Motion denied.
Attorneys and Law Firms
*256 Arthur A. Schulcz, Sr., Vienna, VA, for plaintiffs.
Michael Q. Hyde, U.S. Department of Justice, Federal Programs, Washington, DC, for defendants.
Opinion
MEMORANDUM OPINION
DENYING THE PLAINTIFFS’ MOTION FOR CERTIFICATION OF FINAL JUDGMENT

URBINA, District Judge.

I. INTRODUCTION
This matter comes before the court on the plaintiffs’ motion for certification of final judgment. The plaintiffs, current and former *257 Navy chaplains, bring suit against the Secretary of the Navy, other Navy officials, and the Navy (collectively, “the defendants”), alleging that Navy policies and practices unconstitutionally favor liturgical Christian chaplains over non-liturgical Christian chaplains. In an earlier decision, the court dismissed some of the plaintiffs’ claims, including two claims that chaplains should not rate other chaplains and that more than one chaplain should not sit on a chaplain promotion board.1 Adair v. England (“Adair I”), 183 F.Supp.2d 31, 60 (D.D.C.2002). The plaintiffs now move the court to certify the dismissal of these two claims as final judgments under Federal Rule of Civil Procedure 54(b). Because there is just reason for delay and the case therefore is not an “exceptional case” meriting Rule 54(b) certification, the court denies the plaintiffs’ motion.

1

The court later denied the plaintiffs’ Rule 60(b) motion

for relief from judgment. Adair v. England (“Adair II”),

209 F.R.D. 1 (D.D.C.2002).

II. BACKGROUND2

2

For a detailed account of the factual allegations

underlying both complaints, see Adair I, 183 F.Supp.2d

at 34–38, 40–45.

In this consolidated action,3 the plaintiffs’ claims fall into three principal categories: First Amendment Establishment Clause claims, Free Exercise Clause claims and Equal Protection Clause claims.4 Adair I, 183 F.Supp.2d at 41. First, the plaintiffs charge that the Navy has established and maintained an unconstitutional religious quota system that permits them to hire, promote and retain chaplains from liturgical denominations at a rate greater than the liturgical Christians’ representation among all Navy personnel. Id. at 41–42. Second, the plaintiffs allege a variety of constitutional problems with the Navy’s chaplain-promotion system, including placing more than one chaplain on a promotion board, the use of chaplains to rate other chaplains, the application of “faith
1

Chaplaincy of Full Gospel Churches v. England, 221 F.R.D. 255 (2004)

group identifier” codes, and the domination of the boards by liturgical Protestant and Catholic chaplains. Id. at 42–44. Finally, the plaintiffs assert that the Navy’s discriminatory policies against and general hostility to non-liturgical denominations deny non-liturgical chaplains and their would-be congregants their constitutional right to the free exercise of their religion. Id. at 44–45.

3

In January 2001, the court’s Calendar Committee

transferred these cases from Judge June L. Green to this

member of the court. Prior to the transfer, and pursuant

to the parties’ joint recommendation, Judge Green

consolidated the two cases for pretrial purposes. Order

dated Sept. 26, 2000.

4

In addition, the plaintiffs contend, inter alia, that

Congress may not appropriate tax funds to support the

Navy’s use of such funds to favor one religion, the

Navy has fraudulently concealed evidence supporting

the plaintiffs’ causes of action, the Navy has retaliated

against certain plaintiffs for bringing suit, and the Navy

has violated the Religious Freedom Restoration Act, 42

U.S.C. §§ 2000bb et seq. Adair, 183 F.Supp.2d at 45.

In January 2002, the court dismissed two of the plaintiffs’ claims: (1) that chaplains should not rate other chaplains, and (2) that more than one chaplain should not sit on a chaplain promotion board. Id. at 60. Among the many rulings that followed was the court’s granting of the plaintiffs’ motion to compel discovery. Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (D.D.C.2003). After the defendants appealed the discovery ruling, the plaintiffs filed a motion to certify the January 2002 dismissal of the two claims as final judgments pursuant to Rule 54(b), and thereby permitting them to draw an appeal on these claims. The court now turns to the plaintiffs’ motion.

III. ANALYSIS
A. Legal Standard for Rule 54(b) Certification of Final Judgment
Federal Rule of Civil Procedure 54(b) allows a district court in a case with multiple parties or multiple claims to “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an

express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” FED. R. CIV. P. 54(b). The purpose of Rule 54(b) is to “mediate[ ] between the sometimes antagonistic goals of avoiding piecemeal appeals *258 and giving parties timely justice.” Taylor v. Fed. Deposit Ins. Corp., 132 F.3d 753, 760 (D.C.Cir.1997).
[1] Whether a case is one of the “exceptional cases” qualifying for Rule 54(b) certification is a decision that falls within the discretion of the district court, which is “most likely to be familiar with the case and with any justifiable reasons for delay.” Bldg. Indus. Ass’n of Super. Calif. v. Babbitt, 161 F.3d 740, 743 (D.C.Cir.1998) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 100 L.Ed. 1297 (1956)). Under the rule, “the district court [functions] as a dispatcher, determining in its sound discretion when a claim should proceed on to appellate resolution and when it should await its fellows.” Petties v. District of Columbia, 227 F.3d 469, 472 (D.C.Cir.2000) (internal quotations omitted); see also Hill v. Henderson, 195 F.3d 671, 672 (D.C.Cir.2000) (describing Rule 54(b) as an “escape hatch” permitting a partial disposition to become a final judgment).
[2] The district court, however, must make certain determinations on the record before the appellate court can acquire jurisdiction. Bldg. Indus. Ass’n, 161 F.3d at 743; see also Haynesworth v. Miller, 820 F.2d 1245, 1253 (D.C.Cir.1987) (noting that a district court’s “[f]ailure to take the steps specified in Rule 54(b) is more than a mere technicality; without compliance, a federal court of appeals lacks jurisdiction to entertain challenges to the order”). First, the district court must ensure that it is dealing with a final judgment: “final” in the sense that it is “an ultimate disposition of an individual claim entered in the course of a multiple claims action,” and “a ‘judgment’ in the sense that it determines a claim for relief.” Bldg. Indus. Ass’n, 161 F.3d at 744 (quoting Curtiss–Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980)).
[3] Second, the court must determine whether there is any just reason for delay, keeping in mind that “[n]ot all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims.” Id. (quoting Curtiss–Wright Corp., 446 U.S. at 8, 100 S.Ct. 1460). Before “departing from the norm” by certifying a final judgment, the court “must take into account judicial administrative interests,” including “such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature
2

Chaplaincy of Full Gospel Churches v. England, 221 F.R.D. 255 (2004)

of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals.” Id. (emphasis in original) (quoting Curtiss–Wright Corp., 446 U.S. at 8, 100 S.Ct. 1460); see also Hill, 195 F.3d at 672 (noting that when review is deferred, “it is less likely that the appellate court will face overlapping issues and circumstances on two occasions”). The court also must consider the equities involved. Bldg. Indus. Ass’n, 161 F.3d at 744 (citing Curtiss–Wright Corp., 446 U.S. at 8, 100 S.Ct. 1460).

B. The Court Denies the Plaintiffs’ Motion for Certification of Final Judgment
The plaintiffs contend that the court should grant Rule 54(b) certification because the court’s judgment on the two claims is final and there is no just reason for delay. Pls.’ Mot. for Certification (“Pls.’ Mot.”) at 4. The plaintiffs argue that the judgment qualifies as final because the claims are separate and distinct from the remaining claims, and because the court not only dismissed the claims but denied the plaintiffs’ subsequent motion for relief from judgment under Rule 60(b). Id. at 5–9. In addition, the plaintiffs assert that both judicial administrative interests and the equities favor certification, given the separate theories of the claims and the fact that the plaintiffs “are years into litigation with no end in sight.” Id. at 9–12.
The defendants dispute the plaintiffs’ characterization of the dismissed claims. See generally Defs.’ Opp’n. At the outset, the defendants contend that the court’s judgment is not final because the plaintiffs seek certification on a claim that they did not plead,5 and because there is substantial overlap on *259 factual and legal issues (including defenses) between the dismissed claims and the remaining claims. Id. at 4–8. The defendants go on to argue that the plaintiffs do not offer sufficient justification for an immediate appeal, stating that any delay to date has been the result of the plaintiffs’ actions and any remedy likely would be delayed until final resolution of the plaintiffs’ other promotion claims. Id. at 9–12.

5

The plaintiffs characterize the first of the two claims for

which they seek certification as “having a chaplain or

chaplains as members of Navy chaplain selection

boards that either promote or select for early retirement

other chaplains.” Pls.’ Mot. at 1. The defendants point

out that the plaintiffs specifically challenged “boards

with more than one chaplain” rather than boards with

any chaplain, and argue that the plaintiffs cannot

request certification on a claim that they did not plead. Defs.’ Opp’n at 5 (citing Adair Third Am. Compl. ¶ 50; Chaplaincy Third Am. Compl. ¶ 86). In response, the plaintiffs acknowledge that the defendants “technically” are correct, but argue that the court’s analysis did not focus on the distinction between “more than one” and “any” chaplain board members, and that in any case the court would deem futile any effort by the plaintiffs to amend their complaint given the present posture of the cases. Pls.’ Reply at 1–3. The court here considers the claim as set forth in the complaints.

[4] The court concludes that its January 2002 dismissal “does amount to a final judgment” on the plaintiffs’ two claims that chaplains should not rate other chaplains and that more than one chaplain should not sit on a chaplain promotion board. Adair v. England (“Adair II”), 209 F.R.D. 1, 3 n. 1 (D.D.C.2002). The dismissal constituted an ultimate disposition and determination of the two claims. Bldg. Indus. Ass’n, 161 F.3d at 744. Therefore, the sole question before the court is whether, taking into account judicial administrative interests and the equities involved, there is just reason for delay. Id.
[5] The court concludes that there is. Although the two dismissed claims are “in some sense separable” from the remaining claims, the two claims raise issues common to the plaintiffs’ other promotion claims and thus weigh heavily against a piecemeal appeal. Id. For example, the two claims challenge the structure of the promotion boards, an issue the appellate court is likely to spend considerable time examining as part of any appeal of the plaintiffs’ wide-ranging claims regarding the board’s alleged use of quotas and alleged domination by liturgical Protestant and Catholic chaplains. Hill, 195 F.3d at 672; Rahmann v. Fed. Nat’l Mortgage Ass’n, 2003 WL 21940044, at *3 (D.D.C. March 20, 2003) (finding that common issues shared by a discrimination claim and a notification claim prevented Rule 54(b) certification). Moreover, the defendants indicate that they plan to raise a defense common to the two claims and to certain of the plaintiffs’ remaining promotion claims:6 namely, that the current board structure of two chaplains and five non-chaplain officers precludes any argument that the boards are constitutionally infirm. Defs.’ Opp’n at 7–8; Navajo Nation v. Peabody Holding Co., 209 F.Supp.2d 269, 275 (D.D.C.2002) (denying entry of final judgment where a defendant was likely to defend an appeal with arguments common to the remaining defendants).

6

Specifically, the defendants note that they would raise

the defense against the plaintiffs’ claim that the

defendants apply quotas in chaplain promotions. Defs.’

Opp’n at 7.

3

Chaplaincy of Full Gospel Churches v. England, 221 F.R.D. 255 (2004)

Nor do the equities merit certification. Bldg. Indus. Ass’n, 161 F.3d at 744. Although the plaintiffs clearly have a strong interest in appealing the dismissed claims as soon as possible, the court cannot say that this interest outweighs the need to avoid piecemeal appeals. Camm v. Kennickell, 1988 WL 63066, at *1 (D.D.C.1988) (sympathizing with the defendants’ desire to put the lawsuit behind them but holding that their desire did not overcome the judicial preference against piecemeal appeals). Accordingly, because the case is not an “exceptional case[ ]” meriting Rule 54(b) certification, the plaintiffs are not entitled to Rule 54(b) certification. Bldg.

Indus. Ass’n, 161 F.3d at 743.
IV. CONCLUSION For the foregoing reasons, the court denies the plaintiffs’ motion for certification of final judgment. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 6th day of May, 2004.

4

 
 417 F.Supp.2d 1 (2006)
Robert H. ADAIR et al., Plaintiffs, v.
Gordon R. ENGLAND, Secretary of the Navy et al., Defendants. Chaplaincy of Full Gospel Churches et al., Plaintiffs, v.
Gordon R. England, Secretary of the Navy et al., Defendants.
Civil Action Nos. 00-0566 (RMU), 99-2945(RMU).
United States District Court, District of Columbia.
February 28, 2006.
2*2 Arthur A. Schulcz, Sr., Vienna, VA, for Plaintiffs/Defendants.
Michael Q. Hyde, U.S. Department of Justice, Thomas E. Caballero, The United States Senate, Washington, DC, for Defendants.
MEMORANDUM OPINION
DENYING THE PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER
URBINA, District Judge.
I. INTRODUCTION
The plaintiffs in this consolidated case are current and former Navy chaplains and an ecclesiastical endorsing agency for military chaplains. The plaintiffs charge that the hiring, retention and promotion policies of the Navy Chaplain Corps demonstrate an unconstitutional endorsement of liturgical Christian sects over non-liturgical Christian sects. Currently before the court is the plaintiffs' motion for a temporary restraining order ("TRO"), filed on February 24, 2006.[1] This is the plaintiffs' sixth motion for extraordinary interim relief in this case. The plaintiffs move the court to block the Navy from discharging plaintiff Michael Belt and other naval chaplains from active duty on March 1, 2006.[2] This motion is linked to the plaintiffs' 3*3 motion for declaratory judgment and/or partial summary judgment filed the same day. In the declaratory judgment motion, the plaintiffs assert that the personnel composition of promotion selection boards violates the Establishment Clause.

This harms the plaintiffs (who were not selected for promotion), they argue, because, as they so un-eloquently state, "a Jew is unlikely to represent a Muslim's interests."[3]
Because the plaintiffs fail to demonstrate a substantial likelihood of success on the merits or irreparable injury, the court denies the plaintiffs' motion for a TRO.
II. BACKGROUND
A. Factual Background
Because the court has published nearly a dozen opinions in this case, the court will dispense with a full recitation of the lengthy and convoluted factual and procedural background of this case.[4] In this consolidated action, the plaintiffs' claims fall into three principal categories: First Amendment Establishment Clause claims, Free Exercise Clause claims and Equal Protection Clause claims. Adair v. England, 183 F.Supp.2d 31, 41 (D.D.C.2002). First, the plaintiffs charge that the Navy has established and maintained an unconstitutional religious quota system that permits them to hire, promote and retain chaplains from liturgical denominations at a rate greater than the liturgical Christians' representation among all Navy personnel. Id. at 41-42. Second, the plaintiffs allege a variety of constitutional problems with the Navy's chaplain-promotion system, including placing more than one Catholic chaplain on promotion boards, the use of chaplains to rate other chaplains, the application of "faith group identifier" codes, and the general domination of the boards by liturgical Protestant and Catholic chaplains. Id. at 42-44. Finally, the plaintiffs assert that the Navy's discriminatory policies against, and general hostility to, non-liturgical denominations deny nonliturgical chaplains and their would-be congregants the constitutional right to free exercise of their religion. Id. at 44-45.
B. Procedural History
1. Procedural Background
Without expending unnecessary judicial resources providing a full exposition of the 4*4procedural background of this case, the court notes the following. The court currently has before it a motion for declaratory judgment filed by the plaintiffs in August 2005. In that motion, the plaintiffs move the court to declare that "10 U.S.C. § 618(f) is unconstitutional and exceeds Congress lawful powers in as much as it (1) bars Plaintiffs from taking discovery concerning selection board misconduct from personnel on those boards who witnessed chaplain selection boards proceedings and (2) effectively bars Plaintiffs' constitutional claims and extinguishes their constitutional rights." Mot. for Decl. J. (Aug. 12,

2005) at 1. In short, that motion concerns the plaintiffs' access (or lack thereof) to information concerning the Navy's chaplain selection boards.
2. The Plaintiffs' Motion for Declaratory Judgment and/or Partial Summary Judgment
On February 24, 2006, the plaintiffs filed yet another motion for declaratory judgment. In this motion, the plaintiffs challenge the Navy's chaplain promotion process. Mot. for Decl. J. (Feb. 24, 2006) at "Introduction." According to the plaintiffs, every career grade promotion board and every commander selective early retirement board from 1977 to 2002 included at least one Catholic chaplain.[5] Id. at "Introduction" & 14. The plaintiffs characterize this consistent inclusion of a Catholic chaplain on the promotion boards as a "de facto board policy favoring Catholics," which enabled the "favored denomination to control the board results, prejudicing the non-preferred denominations and their chaplains such as [p]laintiffs." Id. at 7. The defendants were able to perpetuate this policy, the plaintiffs believe, by "keeping their actual illicit operating policies unpublished," by "cloaking their illegal behavior behind published policies that falsely averred, `Chaplains are selected for promotion based solely on their relative competitiveness; their religious affiliation is entirely immaterial,'" and by "keeping board proceedings sealed through board confidentiality oaths and then litigating to extremes in order to hide the truth from victims, courts and the public." Id.at 14.
To the plaintiffs, this de facto policy is unlawful in three respects. First, the plaintiffs argue that this policy violates the Navy's own regulations, to wit: Department of Defense Directive 1332.32 ¶ 4.4.1; Secretary of Navy Instruction ("SECNVINST") 1401.3; and Enclosure 1 to SENAVINST 14.1.3, "Supplemental Guidance for U.S. Navy Selection Boards" at 3, ¶1.c.(1)(e) and 9, ¶ 8.c.(1)(e). Pls.' Mot. for Decl. J. (Feb. 24, 2006) at 11. Second, the plaintiffs argue that the policy violates the Establishment Clause. Id. at 10, 39-43. Finally, the plaintiffs contend that the Navy's preferential treatment of Catholic clergy (in their disproportionate representation on the selection board), violates the equal protection component of the Due Process Clause. Id. at 10.
3. The Plaintiffs' Motion for a Temporary Restraining Order
The plaintiffs filed a motion for a TRO coterminous to their motion for declaratory judgment. The plaintiffs' TRO motion advocates that the court should enjoin the Navy from discharging plaintiff Michael Belt and several other naval chaplains on 5*5 March 1, 2006. Pls.' Mot. at 2. Specifically, the plaintiffs allege that a recent change in naval policy[6] requires that the

Navy terminate those service personnel who were not selected for promotion on two occasions, a group of individuals which includes plaintiff Belt. Id. at 2. According to the plaintiffs, they failed to receive promotions on two occasions because of the defendants' unconstitutional promotion board practices. Id. at 4-6. For this reason, the plaintiffs ask the court to enjoin the Navy from discharging plaintiff Belt as currently scheduled until such time as the court can rule on the underlying legal issues argued in the plaintiffs' motion for declaratory judgment. The court turns to the plaintiffs' motion for a TRO.
III. ANALYSIS
A. Legal Standard for Injunctive Relief
This court may issue interim injunctive relief only when the movant demonstrates:
(1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction is not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.
Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C.Cir.1998) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.Cir.1995)); see alsoWorld Duty Free Americas, Inc. v. Summers, 94 F.Supp.2d 61, 64 (D.D.C.2000). It is particularly important for the movant to demonstrate a substantial likelihood of success on the merits. Cf. Benten v. Kessler, 505 U.S. 1084, 1085, 112 S.Ct. 2929, 120 L.Ed.2d 926 (1992) (per curiam). Indeed, absent a "substantial indication" of likely success on the merits, "there would be no justification for the court's intrusion into the ordinary processes of administration and judicial review." Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F.Supp.2d 114, 140 (D.D.C.1999) (internal quotation omitted).
The four factors should be balanced on a sliding scale, and a party can compensate for a lesser showing on one factor by making a very strong showing on another factor. CSX Transp., Inc. v. Williams, 406 F.3d 667 (D.C.Cir.2005) (citing City-Fed Fin. Corp., 58 F.3d at 747). "An injunction may be justified, for example, where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury." CityFed Fin. Corp., 58 F.3d at 747.
Moreover, the other salient factor in the injunctive relief analysis is irreparable injury. A movant must "demonstrate at least `some injury" to warrant the granting of an injunction. CityFed Fin. Corp., 58 F.3d at 747 (quotation omitted). Indeed, if a party makes

no showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors. Id.
Because interim injunctive relief is an extraordinary form of judicial relief, courts should grant such relief sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). As the Supreme Court has said, "tilt frequently is observed that a preliminary injunction 6*6 is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Id. (citation omitted). Therefore, although the trial court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted lightly. In addition, any injunction that the court issues must be carefully circumscribed and tailored to remedy the harm shown. Nat'l Treasury Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C.Cir.1990) (citation omitted).
B. The Court Denies the Plaintiffs' Motion for a TRO
1. The Plaintiffs Fail to Demonstrate a Substantial Likelihood of Success on the Merits
The plaintiffs allege that they have demonstrated a substantial likelihood of success on their motion for declaratory judgment. Pls.' Mot. at 4-7. The plaintiffs' motion for declaratory judgment challenges the Navy's personnel lineup in its chaplain selection boards. Pls.' Mot. for Decl. J. (Feb. 24, 2006) at 13 (stating that the undisputed evidence shows that the Navy had "an unwritten but ironclad policy that reserved at least one Catholic seat on each chaplain selection board . ."). They argue that because this court will apply strict scrutiny to any practice demonstrating a denominational preference, it will likely rule that this policy violates the Establishment Clause. Pls.' Mot. at 5 (citing Adair v. England, 217 F.Supp.2d 7, 14 & 15 (D.D.C.2002)).
Through the plaintiffs' remonstrations of this "unwritten but ironclad policy," they have forgotten to consult the court's prior rulings in this case. If they had, the plaintiffs would have discovered that this court previously engaged, and rejected, a similar call. Back in 2002, "the plaintiffs ask[ed] the court to believe 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." Adair, 183 F.Supp.2d at 60. In that opinion, and for reasons still valid today, the court refused to accept that assumption. Id. (citing numerous district court decisions in support of the position that "[w]ell-settled case law instructs courts to presume that government officials will conduct themselves properly"); see also Larkin v. Grendel's Den, Inc., 459 U.S. 116, 125, 103 S.Ct. 505, 74 L.E d.2d 297 (1982) (considering a claim of

unchecked discretion delegated to a church and stating that "[w]e can ass ume that churches would act in good faith in the exercise of their statutory power").
Given the court's prior resolution of this issue, the plaintiffs' statement that "[a] Jew is unlikely to represent a Muslim's interest, nor is an anti-Pentecostal likely to look kindly on a Pentecostal," Pls.' Mot. for Decl. J. (Feb. 24, 2006) at 22, is not only a cynical expression of doubt, but an inappropriate one as well, in the context of this case.[7]United States v. Kikumura, 947 F.2d 72, 77 (3d Cir.1991) (stating that "under the law of the case doctrine, when a court decides upon a rule of law, that decision should continue to govern the 7*7 same issues in subsequent stages in the same case").
The plaintiffs' likelihood of success is also undermined by the D.C. Circuit's ruling that the plaintiffs are not entitled to "civil discovery of promotion selection board proceedings." In Re England, 375 F.3d 1169 (D.C.Cir.2004). The application of the circuit court's ruling to the continued efficacy of the plaintiffs' case is presently before this court via the plaintiffs' first motion for declaratory judgment. Given the unequivocal language of the circuit's opinion, effectively foreclosing the plaintiffs from delving into promotion board proceedings, the plaintiffs have an uphill battle in demonstrating that board members made their decisions not to promote the plaintiffs because of their religious affiliations. Adair, 183 F.Supp.2d at 60. In its 2002 Memorandum Opinion, the court noted that "[o]nly if an official in fact acts to infringe religious liberty in an unconstitutional manner is there a First Amendment violation that the courts can take cognizance of and, generally, remedy." Id. The court continued that "when chaplains sit on promotion boards, they act as officers who are evaluating a fellow officer's fitness for promotion." Id. at 62.
To summarize, the plaintiffs' success in obtaining a declaratory judgment from this court rests on their ability to demonstrate that their failure to receive a promotion was due to their religious affiliation. Id. at 60. But, given the legal presumption that government officials will conduct themselves properly, id. at 60, and the circuit court's effective foreclosure of discovery into the promotion board's proceedings, In Re England, 375 F.3d 1169, the court is unlikely to resolve the plaintiffs' declaratory judgment motion in their favor.[8] Accordingly, the plaintiffs fail to demonstrate a substantial likelihood of success on the merits.[9]
2. The Plaintiffs Fail to Demonstrate Irreparable Injury[10]
The plaintiffs contend that, if discharged, plaintiff Belt will be irreparably harmed in two ways. First, the plaintiffs argue that violations of First Amendment rights per seconstitute irreparable injury. Pls.' Mot. at 8. Second, the plaintiffs assert that plaintiff Belt will be

irreparably harmed because of his "unique medical condition," namely, that he would not be presented to a medical board which would 8*8 "probably grant him a medical discharge and a pension." Id. at 10. The court will address these arguments below.
In supporting their position that First Amendment rights are per se irreparable, the plaintiffs cite Wilkins v. Lehman, slip. op. (S.D.C.A.1985). The Wilkins case, in turn, quotes Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) for the proposition that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Id. at 10. This argument was previously brought before this court and rejected. Mem. Op. (Feb. 7, 2005) at 6. In its first encounter with this argument, the court noted the plaintiffs' affinity for Elrod and distinguished that case on its facts. Id. In Elrod, a local sheriffs office had an undisputed practice of replacing certain of its employees with members of the sheriffs political party when those employees did not obtain support from or affiliate with the sheriff's party. Elrod, 427 U.S. at 349-51, 96 S.Ct. 2673. At play in Elrod was the plaintiffs' claim that they were discharged or threatened with discharge based on their political affiliation. Id. at 373, 96 S.Ct. 2673. The Court, addressing the loss of First Amendment freedoms, declared that "[t]he timeliness of political speech is particularly important." Id. at 374 n. 29, 96 S.Ct. 2673.
In the plaintiffs' first go-round with this argument, the court noted that because the defendants' policy had been the alleged practice for 13 years, "[o]ne cannot help but wonder why, in the face of more than a decade of allegedly illegal action, the plaintiffs now require immediate injunctive relief or, at the very least, cannot wait until completion of discovery or a future point when this case is more developed." Mem. Op. (Feb. 7, 2005) at 7. The plaintiffs apparently construe the court's previous statement as an invitation for the plaintiffs to wait a while and re-bring the same rejected arguments. It was not. Although time has passed, this case is no more developed than it was one year ago, and the law of the case doctrine applies.[11]Kikumura, 947 F.2d at 77.
Second, the plaintiffs argue that irreparable injury will befall plaintiff Belt who, were he not discharged on March 1, 2006, "would probably face a medical board which would probably grant him a medical discharge and a pension." Pls.' Mot. at 10. This assertion falls flat for numerous reasons, chief among them being 9*9 that "[t]he possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable injury." Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (stating that "Mlle key word in this consideration is irreparable" and noting that claims of loss income or reputation fall "far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction"). TheSampson court did recognize "that cases may arise in which the

circumstances surrounding an employee's discharge together with the resultant effect on the employee, may so far depart from the normal situation that irreparable injury might be found," Sampson, 415 U.S. at 92 n. 68, 94 S.Ct. 937, and several courts in this district have concluded that the plaintiffs in those cases have made such a showing,Risteen v. Youth for Understanding, Inc., 245 F.Supp.2d 1, 16 (D.D.C.2002) (finding irreparable injury when the plaintiff demonstrated that he would not have access to "critical medical attention because he has lost his health insurance"); McVeigh v. Cohen, 983 F.Supp. 215, 221 (D.D.C.1998) (finding that the plaintiff's loss of job, income, pension, health and life insurance, coupled with the alleged "stigma" associated with his discharge from the Navy under the "Don't Ask, Don't Tell, Don't Pursue" constituted irreparable harm); see also Cooney v. Dalton, 877 F.Supp. 508, 515 (D.Hi.1995) (finding that a separation from the military constituted irreparable harm because the discharge was categorized as "other than honorable").
Here, by contrast, the plaintiffs have pointed only to plaintiff Belt's potential eligibility for medical discharge and pension benefits.[12] Pls.' Mot. at 10; Carabillo v. ULLICO Inc. Pension Plan and Trust, 355 F.Supp.2d 49, 54 (D.D.C.2004) (stating that a finding of irreparable injury is warranted when the plaintiff "alleges a critical need for healthcare, as opposed to a mere financial hardship"). This alleged harm, without more, is insufficient to support a finding of irreparability. Int'l Ass'n of Machinists & Aerospace Workers v. Nat'l Mediation Bd., 374 F.Supp.2d 135, 142 (D.D.C.2005)(citing Davenport v. Int'l Bhd. of Teamsters, AFL-CIO, 166 F.3d 356, 367 (D.C.Cir.1999), in ruling that "a loss of income does not constitute irreparable injury because the financial loss can be remedied with money damages"). Even if the plaintiffs' proffered evidence demonstrated the financial strain that plaintiff Belt's loss of pension benefits would have on him (which they have not), "an insufficiency of savings or difficulties in immediately 10*10 obtaining other employment—external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself—will not support a finding of irreparable injury, however severely they may affect a particular individual." Sampson, 415 U.S. at 92, n. 68, 94 S.Ct. 937. This statement also undercuts the plaintiffs' claim that their difficulty (although at this point purely conjectural) in pursuing alternative employment constitutes irreparable injury. Pls.' Mot. at 10.
3. The Equities Counsel Against Injunctive Relief
Having concluded that the plaintiffs have failed to demonstrate either a substantial likelihood of success on the merits or irreparable injury, the court need not long discuss the equities. The plaintiffs argue that because the Navy is currently short chaplains, that injunctive relief in this case will actually benefit the Navy, by giving them more chaplains. Pls.' Mot. at 10-

11. The Navy disagrees, arguing that an injunction in this case would frustrate Congress'"interest in regulating the military as it deems appropriate" through "judicial second-guessing." Defs.' Opp'n at 35. The court is not reticent to its evaluative obligation of the plaintiffs' constitutional claims, Emory v. Secretary of the Navy, 819 F.2d 291, 294 (D.C.Cir.1987), and will engage itself with dispatch if it rules that a constitutional violation exists. But at the injunctive relief stage, before the court can definitively rule on the plaintiffs' underlying constitutional challenges, an injunction would unduly impose the court on the legislature's and the executive's military and employment prerogatives. See e.g. Guerra v. Scruggs, 942 F.2d 270, 275 (4th Cir.1991). For this reason, the court finds that greater harm would come to the defendants in granting the injunction than would come to the plaintiffs in denying the injunction. The public has a vested interest in having this court resolve the serious constitutional questions raised by this case. But the public has a concomitant interest in the judiciary exercising its interpretive role with delicacy and appropriate deliberation, thus ensuring that its exposition of the law is sound and just. Granting injunctive relief on an expedited basis, as the plaintiffs' here request, would not serve that public interest.
IV. CONCLUSION
For the reasons outlined herein, the court denies the plaintiffs' motion for injunctive relief. An order directing the parties in a manner consistent with this Memorandum Opinion is issued separately contemporaneously this 28th day of February 2006.
[1] The court ordered expedited briefing; the defendants' opposition was due byFebruary 27, 2006 at 2:00 p.m. and the plaintiffs' reply was due by February 28, 2006 at 9:00 a.m. Minute Order(Feb. 24, 2006). The parties having filed their briefs, the plaintiffs' motion is ripe for review.
[2] Besides plaintiff Belt, the plaintiffs indicate that the defendant plans on discharging naval chaplain Rene Porter Stewart. Pls.' Mot. at 3. The plaintiffs previouslymoved the court to add Porter-Stewart as a plaintiff in this case, a request the court denied. Order (July 16, 2003). For this reason, the plaintiffs' references to Porter -Stewart in the present motion is troubling. The plaintiffs state that because the court denied their request to a dd Porter-Stewart without prejudice, they "have been waiting for an appropriate time to resubmit their request." Pls.' Reply at 17. Perhaps an appropriate time for such a motion was b efore theybegan representing Porter-Stewart in this action. Presently, Porter-Stewart is not a plaintiff in this case. The court notes, however, that were it to evaluate Porter Stewart's claims, those claims would fail for the reasons stated herein; principal among them being that the plaintiffs do not proffer any evidence or argument that Porter-Stewart will be irreparablyharmed.
[3] In light of the fact that the issues presented here concern Christianityand its competing denominations, the plaintiffs' reference to deeply rooted and intercultural animosities, particularlyinvoking those of Judaism and Islam, more than overstates the point, it borders on the inappropriate.
[4] For a detailed account of the factual allegations underlying both complaints, see Adair v. England,183 F.Supp.2d 31, 34-38, 40-45 (D.D.C.2002). In January 2001, the court's Calendar Committee transferred these cases from Judge June L. Green to this member of the court. Prior to the transfer, and pursuant to the parties' joint recommendation, Judge Green consolidated the two cases for pretrial purposes. Order (Sept. 26, 2000).

[5] Despite this broad charge, the plaintiffs do recognize limited exceptions to thei r generalization. First, because no Catholic clergy members held positions higher than the officer under consideration, the selective and early retirement boards from 1991 to 1994 did not contain any Catholic members. Pls.' Mot. for Decl. Judgment at "Intr oduction" n. 1.
[6] The defendants counter that the Navy must discharge Belt not due to a recent change in naval poli cy but due to 10 U.S.C. § 632, which provides that lieutenants or lieutenant commanders who have twice failed selection for promotion to the next higher grade shall, except in limited circumstances, be discharged. Defs.' Opp'n at 1 (citing 10 U.S.C. § 632).
[7] The court notes that the plaintiffs' own arguments undermine their tenuous claim of harm. The plaintiffs reject the claim that "denominational representatives must be a board member to ensure fairness." Mot. for Decl. J. at 22. And yet, their alleged injuryrests on the assumption that the plaintiffs were treated disparatelybecause of their religious affiliation—that they did not receive promotions because either theylacked denominational representation on the promotion board or because the promotion board members made their decision on religious grounds. The plaintiffs cannot have their wafer and eat it too.
[8] The defendants argue that the court lacks subject-matter jurisdiction to entertain the plaintiffs' claim that the Navy is acting in violation of its regulations because the plaintiffs have failed to first seek administrative remedies. Defs.' Opp'n at 32; Pls.' Reply at 19-22. The court does not consider this issue here, but will address it subsequentlyin its ruling on the plaintiffs' motion for declaratory judgment.
[9] The issues presented in this case are both serious and complex. As such, the court's ruling regarding the merits of the plaintiffs' declaratoryjudgment should not be construed as a ruling on the underlying substantive constitutional issues. The court will address those issues when it rules on the plaintiffs' two motion s for declaratoryjudgment.
[10] As a preliminarymatter, the defendants contend that the plaintiffs knew of the Mar ch 1, 2006 discharge date in October of 2003. Defs.' Opp'n at 18. The plaintiffs attempt to mitigate this fact by noting non -plaintiff Porter-Stewart's negotiations with the Navy to extend the March 1 deadline. Pls.' Reply at 2. While the plaintiffs are co rrect that the existence of the negotiations indicates stronglythat the March 1, 2006 separation date was "not locked in concrete three years ago," id., it does not change the fact that the plaintiffs had notice of the impending separation date in 2003. The court looks skepticallyon the plaintiffs' assertion of an emergencywhen it appears that the plaintiffs delay was the emergency's cause. Qualls v. Rumsfeld, 357 F.Supp.2d 274, 286 (D.D.C.2005); Mylan Pharm. Inc. v. Shalala, 81 F.Supp.2d 30, 44 (D.D.C.2000).
[11] The court's prior ruling, re-affirmed today, is supported bythe D.C. Circuit's decision in Nat'l Treasury Employees Union v. United States, 927 F.2d 1253, 1254 (D.C.Cir.1991), in which the court, discussing Elrod, noted that an injunction is appropriate onlywhen the party seeking relief can show that "First amendment interests [are] either threatened or in fact being impaired at the time relief [is] sought." Nat'l Treasury Employees Union v. United States, 927 F.2d 1253, 1254 (D.C.Cir. 1991)(internal citations omitted) (correction in original). The plaintiffs here have not alleged that they will shed their religious affiliations before the court can resolve the plaintiffs' motion for declaratory judgment. Id., 927 F.2d at 1255 (ruling that injunctive relief was not proper because the record did not convince the court that "the appellants will cease speaking or writing before the district court resolves their constitutional challenges"). The plaintiffs attempt to distinguish Nat'l Treasury Employees Unionon the grounds that they have presented evidence suggesting disparate unconstitution al treatment. Pls.' Replyat 11. The plaintiffs miss the point. The plaintiffs' statistical evidence maylend credence to the underlying substantive claim that the Navy is violating the Establishment Clause. The D.C. Circuit in Nat'l Treasury Employees Union, however, noted a lack of evidentiary support concerning the appellants' claim of irreparable harm, stating that without injunctive relief, their First Amendment rights would be chilled. 927 F.2d at 1255. The plaintiffs have not proffered this type of evidentiary s upport.
[12] Regarding plaintiff Belt's concern for loss of a medical discharge and pension benefits, according to the government, on February 22, 2006, "the Navy directed Belt's doctors to forward his medical records to the Navy Physical Evaluation Board . . . for consideration of a medical discharge." Defs.' Opp'n at 2, 13. It appears, therefore, that regardless of this court's ruling, the plaintiff may not suffer the harm he fears —his candidacyfor medical discharge will be considered. What's more, according to the government, Belt is entitled to an automatic 180 -day extension of his militarymedical benefits, id. at 13, a point the plaintiffs curiouslyomitted from their opening motion. The plaintiffs reply that because the Navy's Physical Evaluation Board process typicallytakes 90 days, that it will not be complete by March 1, 2006. Pls.' Reply at 3-4, 15. While this may be true, it does not undercut the defendants' assertion, which the court accepts at face value and expects th e defendants to honor, that Belt is entitled to and will receive an automatic 180-dayextension of his militarymedical benefits. This 180-dayextension should carryplaintiff

Belt through the interstices between his discharge and the Physical Evaluation Board's decision. In short, the court expects that the Navy will provide plaintiff Belt with the same opportunityfor benefits as if he was not discharged.

 
 Chaplaincy of Full Gospel Churches v. England, 234 F.R.D. 7 (2006)

234 F.R.D. 7 United States District Court,
District of Columbia.
CHAPLAINCY OF FULL GOSPEL CHURCHES, et al., Plaintiffs, v.
The Honorable Gordon R. ENGLAND, et al., Defendants.
Robert H. Adair, et al., Plaintiffs, v.
The Honorable Gordon R. England, et al., Defendants.
Nos. CIV.A.99–2945, 00–566. | March 7, 2006.
Synopsis Background: Current and former non-liturgical Protestant members of Navy Chaplain Corps and their endorsing agency brought action alleging that Navy has established, promoted, and maintained religious quotas and other discriminatory practices in Navy Chaplain Corps in violation of First and Fifth Amendments and Religious Freedom Restoration Act (RFRA). Plaintiffs moved to compel production of documents.
[Holding:] The District Court, Facciola, United States Magistrate Judge, held that deliberations of Navy Chaplain Corps’ active-duty selective early retirement selection boards were discoverable.
Motion granted.
Attorneys and Law Firms
*8 Arthur A. Schulcz, Sr., Vienna, VA, for Plaintiffs.
Opinion
MEMORANDUM OPINION
FACCIOLA, United States Magistrate Judge.
These cases were referred to me by Judge Urbina for the resolution of discovery disputes. Currently pending before me is the issue of whether the deliberations of the Navy

Chaplain Corps’ active-duty selective early retirement selection boards are discoverable. For the reasons stated herein, I find that such deliberations are discoverable.

I. BACKGROUND Current and former non-liturgical Protestant members of the Navy Chaplain Corps and their endorsing agency, the Chaplaincy of the Full Gospel Churches (collectively “plaintiffs”), brought these two lawsuits against the Navy, the Secretary of the Navy, and Navy officials (collectively “defendants” or “Navy”) alleging that the Navy has established, promoted, and maintained religious quotas and other discriminatory practices in the Navy Chaplain Corps in violation of the First and Fifth Amendments and the Religious Freedom Restoration Act (“RFRA”) of 1993, 42 U.S.C. § 2000–bb et seq.1 Plaintiffs allege that the Navy’s discriminatory practices favor Catholic and liturgical Protestant chaplains to the detriment of non-liturgical Protestant chaplains.2 Plaintiffs’ specific allegations include the assertion that the Navy discriminates against non-liturgical Protestant chaplains in promotion and retention. The two lawsuits were consolidated for the limited purpose of consideration and determination of preliminary motions.

1

All references to statutory materials are to the

electronic versions that appear in Westlaw and Lexis.

2

Liturgical Protestant refers to Christian denominations

whose religious services are characterized by a set

liturgy or order of worship (e.g. Lutheran, Episcopal,

Presbyterian, Methodist). Adair plaintiffs’ Class Action

Third Amended Complaint for Declaratory Judgment,

Injunction and Equitable Relief to Address Defendants’

Unconstitutional Religious Discrimination, Violations

of First and Fifth Amendments, and the Religious

Freedom Restoration Act at ¶ 7(a). Non-liturgical

Protestant refers to Christian denominations or faith

groups whose services do not involve a formal liturgy

or order of worship (e.g. Baptist, Evangelical,

Pentecostal, Charismatic). Id. at ¶ 7(b).

On October 29, 2002, plaintiffs filed a Motion for an Order Requiring Defendant Secretary of the Navy to Release Personnel Associated with Chaplain Promotion Boards From Their Oath Not to Disclose Promotion Board Proceedings. In that motion, plaintiffs sought an order permitting discovery of the deliberations of active-duty promotion and selective early retirement selection board proceedings. Judge Urbina granted the
1

Chaplaincy of Full Gospel Churches v. England, 234 F.R.D. 7 (2006)

motion, finding that the requested discovery was reasonably calculated to lead to the discovery of admissible evidence, that the deliberations were not shielded from discovery by the deliberative process privilege, and that 10 U.S.C. § 618(f) does not bar civil discovery of selection board deliberations. Chaplaincy of Full Gospel Churches, et al. v. Johnson, 217 F.R.D. 250, 256–61 (D.D.C.2003).
The Navy appealed the order granting plaintiffs’ motion and the court of appeals *9 ruled that 10 U.S.C. § 618(f) operates as a complete bar to discovery of the deliberations of active-duty promotion selection boards. In re England, 375 F.3d 1169, 1177–82 (D.C.Cir.2004). The court of appeals noted that section 618(f) expressly references promotion selection boards, but contains no reference to continuation on active-duty or selective early retirement selection boards. Id. at 1181–82. Accordingly, the court of appeals reversed Judge Urbina’s order with regard to promotion boards only and vacated the order with regard to continuation on active-duty and selective early retirement boards, remanding for determination by this court whether there is a statutory prohibition to discovery of continuation on active-duty and selective early retirement boards. As the court of appeals explained:
[I]n reversing the district court’s decision with respect to promotion selection boards, we do not decide whether proceedings of other statutory selection boards are discoverable. Neither the district court nor the parties addressed that as a distinct question, and analysis of it may turn in part on a proper understanding of Section 618(f). We accordingly, vacate the district court’s decision with respect to continuation on active-duty and selective early retirement selection boards, and remand for further consideration. The parties should be afforded the opportunity to litigate, and the district court in the first instance to decide, whether continuation on active-duty and selective early retirement board proceedings are protected, and to what extent, in light of our decision on the proper reading of Section 618(f).
Id. at 1182.

Pursuant to the court of appeals decision, a briefing schedule was established and the parties submitted argument whether active-duty selective early retirement board deliberations are discoverable.3 See Plaintiffs’ Brief in Response to the Court’s 4/4/05 Minute Order on Why 10 U.S.C. § 618(f)’s Bar to Discovery of Proceedings of Promotion Boards Convened Under 10 U.S.C. § 611(a) Can Not Apply to Selective Early Retirement and Continuation Boards Convened Under 10 U.S.C. § 611(b) (“Pls.Brief”); Defendants’ Opening Memorandum Regarding the Discoverability of Deliberations of Navy Chaplain Corps Active–Duty Selective Early Retirement Boards (“Defs.Br.”); Plaintiffs’ Reply to Defendants’ Opening Memorandum Regarding Discoverability of Deliberations of Navy Chaplain Corps Active–Duty Selective Early Retirement Boards (“Pls. Reply Br.”); Defendants’ Reply Memorandum Regarding the Discoverability of Deliberations of Navy Chaplain Corps Active–Duty Selective Early Retirement Boards (“Defs. Reply Br.”).

3

In their briefs, both plaintiffs and defendants stated that

the discoverability of continuation on active-duty

selection boards is not an issue before the court because

plaintiffs are not presently seeking discovery related to

such selection boards. Pls. Br. at 4; Defs. Br. at 5.

However, both plaintiffs and defendants reserved their

rights to raise that issue at a later date if necessary. Pls.

Br. at 4; Defs. Br. at 5.

II. DISCUSSION
A. There Is No Statutory Prohibition to the Discovery of Active–Duty Selective Early Retirement Selection Board Deliberations
1. The Statutory Framework The Navy’s personnel system, which applies to all officers, including chaplains, is governed by 10 U.S.C. §§ 501 et seq. (the “statute”). Under this system, promotion, continuation on active-duty, and selective early retirement determinations involve a selection board comprised of naval officers who deliberate, make selections, and then submit their recommendations to the Secretary of the Navy. See 10 U.S.C. §§ 611–640. Selection boards for promotion are convened under 10 U.S.C. § 611(a), while selection boards for continuation on active-duty and selective early retirement are convened under 10 U.S.C. § 611(b). 10 U.S.C. §§ 611(a)-(b). The procedures under the two provisions differ. One significant difference is that, for promotions, the Secretary of the Navy forwards the recommendations to the Chairman of the Joint Chiefs
2

Chaplaincy of Full Gospel Churches v. England, 234 F.R.D. 7 (2006)

of Staff and the Secretary of Defense, and the ultimate appointment is made by the President, subject *10 to confirmation by the Senate for promotions above the rank of lieutenant. 10 U.S.C. § 618. In comparison, the Secretary of the Navy has final authority over continuation on active-duty and selective early retirement determinations. See 10 U.S.C. §§ 637(c), 638. Another significant difference is that the statute provides guidelines dictating what the selection board may consider for promotion recommendations, see 10 U.S.C. § 615, but the statute contains no such guidelines for continuation on active-duty and selective early retirement selection boards, see 10 U.S.C. §§ 637, 638. The most significant difference for present purposes is that the statute contains a strict confidentiality provision for the deliberations of promotion boards, but contains no such provision for continuation on active-duty or selective early retirement boards. See 10 U.S.C. §§ 618(f), 637, 638.
As part of the Defense Officer Personnel Management Act (“DOPMA”) of 1980, Pub.L. No. 96–513, 94 Stat. 2835 (codified as amended in scattered sections of 10 U.S.C.), Congress enacted section 618(f), which provides: “Except as authorized by this section, proceedings of a selection board convened under section 611(a) of this title may not be disclosed to any person not a member of the board.” 10 U.S.C. § 618(f). In reversing Judge Urbina’s order allowing for discovery of selection board deliberations, the court of appeals held that, by its express language, section 618(f) operates as a complete bar to disclosure and “block[s] civil discovery of promotion selection board proceedings in civil litigation.” In re England, 375 F.3d at 1181. There is no provision like section 618(f) pertaining to continuation on active-duty and selective early retirement boards; however, the Navy has issued regulations requiring that all selection board members take an oath that they “will not disclose the proceedings or recommendations of the board except as authorized or required by SECNAV or higher authority.” SECNAV 1420.1 ¶ 12(f) (1991). The issue presently before the Court is whether the deliberations of active-duty selective early retirement boards are discoverable in civil litigation and, if so, to what extent.
2. Plaintiffs’ Arguments in Favor of Discoverability Plaintiffs argue that the rules of statutory construction and Constitutional law dictate a finding that Congress intended to allow discovery into selective early retirement board proceedings. Plaintiffs base that assertion on six arguments. First, plaintiffs argue that Congress’s intent to allow disclosure of such deliberations is evident from its decision to place restrictions on disclosure in sections of

the statute relating to promotion boards, while not placing similar restrictions in sections relating to selective early retirement boards. Pls. Br. at 29. Plaintiffs bolster this argument by stressing the statute’s separate and distinct treatment of the two types of selection boards. Id. at 31–32. Second, plaintiffs argue that the legislative history of DOPMA contains no hint of an intent to bar discovery of selective early retirement boards. Id. at 32. Third, plaintiffs argue that defendants have not presented “clear and convincing evidence” that Congress intended to restrict judicial review of selective early retirement boards’ decisions and, therefore, courts must presume that Congress intended to allow judicial review. Id. at 33. Fourth, plaintiffs argue that courts must presume that Congress knew the law in effect at the time it passed the statute, which in this case would have required Congress to use express language in order to restrict discovery, and that Congress expected the law to apply to the statute as written. Id. at 33–36. Fifth, plaintiffs argue that RFRA, trumps any limitation on the discovery of the deliberations of selective early retirement boards. Id. at 36. Finally, plaintiffs argue that the constitutional mandates of due process, the right to petition for redress, the Establishment Clause, and the separation of powers doctrine protect their right to the discovery of selective early retirement board deliberations. Id. at 11.
3. Defendants’ Arguments Against Discoverability Defendants argue that Congress intended section 618(f)’s bar to the disclosure of promotion board proceedings to also apply to selective early retirement boards. Defendants’ *11 reasoning is as follows. Congress has explained that section 618(f)’s non-disclosure requirement for promotion boards is necessary to “encourage candid discussions free from outside interference.” Defs. Reply Br. at 18 (quoting S. Rep. 102–482 at 2). At the same time, Congress delegated to the military the authority to prescribe regulations for selective early retirement boards. Id. (citing 10 U.S.C. §§ 611(c), 638(e)(1)). The Secretary of the Navy used that delegation of authority to extend section 618(f)’s confidentiality requirement to selective early retirement boards. Id. Specifically, the Secretary of the Navy issued a regulation requiring that all selection board members, regardless of the type of board, take an oath that they will not disclose the board’s deliberations. Id. (citing SECNAVINST 1420.1 ¶¶ 12(f), 24(c) (1991); SECNAVINST 1420.1A ¶¶ 11(c), 5(i)(1) (1982)). Defendants assert that, because Congress delegated to the Navy the authority to establish procedures for selective early retirement boards and because the military is typically afforded deference in its personnel decisions, Congress intended to allow the Navy to establish
3

Chaplaincy of Full Gospel Churches v. England, 234 F.R.D. 7 (2006)

regulations prohibiting the disclosure of selective early retirement board proceedings as broadly as Congress did for promotion board proceedings. Defs. Br. at 17–20.
Subsequently, with the knowledge of the Navy’s oath requirement, Congress enacted 10 U.S.C. § 14104, which contains a nondisclosure requirement similar to section 618(f), but that limits disclosure of both promotion and selective early retirement board proceedings in the reserve forces. Defs. Reply Br. at 18. In enacting this nondisclosure requirement for the reserve forces, Congress stated that it is parallel to the prohibition contained in section 618(f). Id. (citing H.R. Rep. 103–84 at 37–38). Based on this string of events, defendants argue that the inference can be drawn that Congress intended the deliberations of active-duty selective early retirement boards to be protected from discovery.
4. Analysis [1] [2] The tenants of statutory construction require me to find that there is no statutory prohibition against the discovery of active-duty selective early retirement board deliberations in civil litigation. Most fundamentally, “ ‘where the terms of a statute are unambiguous, judicial inquiry is complete,’ Adams Fruit Co. v. Barrett, 494 U.S. 638, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990), and resort to ‘the more controversial realm of legislative history’ is unnecessary.” In re England, 375 F.3d at 1178 (quoting Lamie v. United States Tr., 540 U.S. 526, 536, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004)). There is absolutely nothing in the statute that limits the disclosure of information relating to active-duty selective early retirement board deliberations. The only provision that prohibits disclosure of selection board deliberations is section 618(f), which is expressly limited to promotion boards. “When ‘Congress includes particular language in one section of a statute but omits it in another section of the same Act,’ we have recognized, ‘it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion.’ ” Clay v. United States, 537 U.S. 522, 528, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983)). The lack of a provision like 618(f) relating to selective early retirement boards demonstrates Congress’s intent to treat the two boards differently. Another district court recently addressed this same issue and came to the same conclusion: “a plain reading of the statute in no way suggests that the restrictive language of section 618(f) should be extended to retirement board proceedings.” Wilkins v. United States, No. 99–cv–1579, at 5 (S.D.Cal. Dec. 23, 2003) (Order Denying Defendants’ Motion for Reconsideration of the Court’s November 13, 2003

Order) (hereinafter “Wilkins”).
[3] Moreover, it is well established that courts are to avoid construing confidentiality provisions in statutes as barring disclosure for discovery purposes unless the statute clearly and unambiguously requires such suppression. See, e.g., Baldrige v. Shapiro, 455 U.S. 345, 360, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982); St. Regis Paper Co. v. United States, 368 U.S. 208, 218, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961); *12 Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1343–44 (D.C.Cir.1984). There is no unambiguous statutory provision barring the disclosure of information here. In fact, there is no provision at all. Under the plain language of the statute and the well established requirement that statutory bars to discovery be made expressly, I must find that there is no statutory prohibition to the discovery of selective early retirement board deliberations.
Even if the Court were to look beyond the language of the statute to Congress’s subsequent actions and to the Navy’s regulations, as defendants suggest, the outcome would be the same. First, Congress’s subsequent passage of 10 U.S.C. § 14104, in which it restricted the disclosure of the deliberations of both promotion and selective early retirement selection boards in the reserve forces, does not support defendants’ argument because section 14104 contains different language than section 618(f). Specifically, section 14104 permits disclosure when “otherwise authorized or required by law.” 10 U.S.C. § 14104. The Federal Rules of Civil Procedure constitute “law” as that term is ordinarily understood and, therefore, discovery pursuant to those rules would fall within section 14104’s “required by law” exception to non-disclosure. See ICG Commc’ns, Inc. v. Allegiance Telecom, 211 F.R.D. 610, 612–13 (N.D.Cal.2002) (the phrase “[e]xcept as required by law” in 47 U.S.C. § 222(c)(1), which protects the confidentiality of customer proprietary network information in the telecommunications industry, allows the court to compel production of documents pursuant to the Federal Rules of Civil Procedure). In contrast, section 618(f) has a significantly narrower exception, permitting disclosure only “as authorized by this section.” 10 U.S.C. § 618(f). Accordingly, Congress’s subsequent restriction of the disclosure of the deliberations of selective early retirement boards in the reserve forces, which allows for disclosure when “otherwise authorized or required by law,” does not evidence an intend to bar civil discovery of the deliberations of similar boards in the active-duty forces.
Second, Congress’s knowledge of the Secretary of the Navy’s regulation requiring that all selection board members swear an oath of confidentiality and Congress’s reference to that requirement when enacting section
4

Chaplaincy of Full Gospel Churches v. England, 234 F.R.D. 7 (2006)

14104 does not equate Congress’s ratification of the Navy’s non-disclosure requirement. While it may be true, as defendant hypothesizes, that Congress intended to ban the disclosure of selective early retirement boards, courts should not speculate as to Congress’s intent. See Wilkins, at 7. Moreover, the fact that Congress enacted section 14104, which addresses the issue of the confidentiality of selection board proceedings, while choosing to not expressly extend section 618(f)’s disclosure limitations to selective early retirement boards, just as likely evidences Congress’s intent to continue to treat selective early retirement boards differently from promotion boards. See Id.
Third, defendants’ argument that Congress’s delegation of authority to the Navy evidences an intent to allow the Navy to establish regulations preventing the disclosure of selective early retirement board deliberations in civil discovery is contrary to the fundamentals of statutory construction already discussed. The fact remains that the statute does not contain a clear and unambiguous prohibition of the discovery of selective early retirement proceedings. A delegation of authority to the Navy to promulgate regulations in no way constitutes such a clear and unambiguous intent. Moreover, in section 611(c), Congress delegated to the Secretary of Defense the authority to prescribe regulations for both promotion and selective early retirement boards, but only expressly limited the disclosure of promotion board proceedings.
In summary, under the plain language of the statute and the well established requirement that statutory bars to discovery be made expressly, I must find that there is no statutory prohibition to the discovery of active-duty selective early retirement board deliberations.

Rule 26(b)(1), id. at 256, and that the deliberative process privilege does not shield the deliberations from discovery because there is a factual basis for plaintiffs’ belief that the requested testimony would yield evidence of government misconduct, id. at 258. The court of appeals’ ruling relating to section 618(f) in no way affected these findings on relevance and the deliberative process privilege and it would not be appropriate for me to revisit those arguments now.
III. CONCLUSION For the foregoing reasons, I find that the discovery of deliberations of active-duty selective early retirement boards is not prohibited by 10 U.S.C. § 501 et seq. In previously ruling on plaintiffs’ motion to compel the testimony of selection board personnel, Judge Urbina directed the parties to jointly propose a plan of discovery regarding that testimony. Chaplaincy of Full Gospel Churches, 217 F.R.D. at 260–61. Specifically, he instructed that “the scope and manner of discovery in this case must take into account the defendants’ interest in preventing a chill in selection-board discussion, the defendants’ interest in maintaining integrity in selection-board proceedings, and the plaintiffs’ interest in direct evidence of possible religious discrimination” and permitted “the plaintiffs to conduct limited discovery of selection-board personnel in a manner that is focused and that minimizes the possibility of harm to the selection-board process.” Id. Accordingly, I direct the parties to submit, within fourteen calendar days of this memorandum opinion, a joint status report that outlines the parties’ plan of discovery regarding active-duty selective early retirement board deliberations.

B. Whether Selective Early Retirement Board Deliberations Are within the Scope of Rule 26(b)(1) or Shielded by the Deliberative Process Privilege Defendants argue that, even if there is no statutory bar to the discovery of selective *13 early retirement board deliberations, such discovery should not be permitted in this case because the deliberations are irrelevant to plaintiffs’ claims and protected by the deliberative process privilege. Defs. Br. at 22. These arguments were already briefed before and rejected by Judge Urbina. See Chaplaincy of the Full Gospel Churches, 217 F.R.D. at 256–58. Judge Urbina held that the testimony of selection board personnel with direct knowledge of board proceedings is reasonably calculated to lead to the discovery of admissible evidence within the meaning of

ORDER
In accordance with the accompanying Memorandum Opinion, it is, hereby, ORDERED that the deliberations of active-duty selective early retirement board deliberations are discoverable in this case. It is furthered ORDERED that the parties submit, within fourteen calendar days of this order, a joint status report outlining the parties’ plan of discovery regarding active-duty selective early retirement board deliberations.
SO ORDERED.

5

 
 451 F.Supp.2d 202 (2006)
Robert H. ADAIR et al., Plaintiffs, v.
Donald C. WINTER,[1] Secretary of the Navy et al., Defendants. Chaplaincy of Full Gospel Churches et al., Plaintiffs, v.
Donald C. Winter, Secretary of the Navy et al., Defendants.
Civil Action Nos. 00-0566 (RMU), 99-2945 RMU.
United States District Court, District of Columbia.
September 11, 2006.
203*203 Arthur A. Schulcz, Sr., Vienna, VA, for Plaintiffs.
Michael Q. Hyde, Washington, DC, for Defendants.
MEMORANDUM OPINION
URBINA, District Judge.
DENYING THE DEFENDANTS' MOTION FOR RECONSIDERATION
I. INTRODUCTION
In the latest iteration of this longstanding dispute between non-liturgical naval chaplains and the United States Navy, the Navy challenges Magistrate Judge Facciola's ruling that the plaintiffs are entitled to discovery of proceedings of Selective Early Retirement ("SER") boards. The plaintiffs' underlying allegation is that they were the victims of religious discrimination at the hand of the SER boards and, in preparing this case, seek discovery of SER-board proceedings. In the proceedings before Judge Facciola, the government claimed that the plaintiffs were barred from discovery into these proceedings pursuant to both federal statutes and the Federal Rules of Civil Procedure. Judge Facciola rejected these assertions and the defendants filed a motion for reconsideration. Because Judge Facciola's ruling is not clearly erroneous or other 204*204 wise a violation of law, the court affirms Judge Facciola's discovery order and denies the defendants' motion for reconsideration.

II. BACKGROUND
A. Factual Background
The plaintiffs in this case allege that the Navy established, promoted, and maintained religious quotas and other discriminatory practices in the Navy Chaplain Corps in violation of the First and Fifth Amendments. Second Am. Compl. at 2. According to the plaintiffs, until the 1980s, the Navy hired chaplains from various faith groups based on objective criteria, such as the relative percentage a religion represented in the total American population. Id. at 23-24. In response to a shift in America's religious demographics away from liturgical Protestant denominations and toward non-liturgical Christian faith groups, however, the Navy allegedly abandoned its objective criteria and adopted a subjective "thirds policy." Id. at 24. Under the thirds policy, the Navy allegedly reserved one-third of its Chaplain Corps slots for Catholics, one-third for liturgical Protestants, and one-third for members of all other religions (including non-liturgical Christians). Id.
According to the plaintiffs, the Navy applied the thirds policy not only to accessions,[2]but to promotions and retentions. Id. at 25. To identify officers for promotion and early retirement, the Navy uses selection boards that evaluate a chaplain's capacity and potential for further service. Id. at 28, 30 (citing 10 U.S.C. §§ 612 et seq.). The plaintiffs allege that to maintain liturgical control of the Chaplain Corps, the Navy uses the promotion and SER boards to diminish non-liturgical chaplains' opportunities for promotion and to "thin down" the number of non-liturgical chaplains at the higher ranks by forcing them out of service. Id. at 24, 28, 32-33. In support of their allegations, the plaintiffs set forth various statistics and anecdotal evidence. E.g., id.at 4-9, 14-17, 19-20, Exs. 2-4, 6. The plaintiffs also point to a 1995 report ("the Ellis Report") noting a "clear" and "disconcerting" institutional bias against nonliturgical chaplains in key Navy positions and a 1997 report ("the Stafford Report") indicating that one promotion board "may have systematically applied a denominational quota system, perhaps to ensure balanced denominational representation across the Chaplain Corps." Id. at 26-27, 32, Exs. 5, 8.
B. Procedural Background
The plaintiffs filed their complaint in November 1999. Two years later, in January 2001, the court's Calendar Committee transferred this case and the related case ofAdair v. Johnson, Civil Action No. 00-0566, to this member of the court. On January 10, 2002, the court issued a comprehensive memorandum opinion granting in part and denying in part the defendants' motion to dismiss both consolidated cases. Adair v. England, 183 F.Supp.2d 31

(D.D.C.2002). The court concluded, inter alia, that the plaintiffs had successfully stated a claim that the defendants' policies and practices violated the Constitution. Id.
On October 29, 2002, the plaintiffs filed their motion to compel the testimony of Navy Chaplain promotion selection boards and SER boards. Chaplaincy of Full Gospel Churches v. Johnson ("Chaplaincy I"), 217 F.R.D. 250, 254 n. 4 (D.D.C.2003). They contended that the testimony of selection-board 205*205 personnel is material to their claims and that the Navy had refused to allow such personnel to testify on the grounds that the proceedings of a selection board "may not be disclosed to any person not a member of the board." Pls.' Mot. to Compel at 1 (citing 10 U.S.C. § 618(f)). This court, on September 2, 2003, granted the plaintiffs' motion to compel, ruling (1) that the requested testimony was relevant to the plaintiffs' claims, (2) that the information sought was not shielded from civil discovery by the deliberative-process privilege, and (3) that 10 U.S.C. § 618(f) did not bar limited discovery.Chaplaincy I, 217 F.R.D. 250. On appeal, the D.C. Circuit reversed in part and vacated and remanded in part. In re England, 375 F.3d 1169 (D.C.Cir.2004). The Circuit court ruled that 10 U.S.C. § 618(f) (in conjunction with 10 U.S.C. § 611(a)), constitutes an absolute bar to disclosure of promotion selection board proceedings in civil discovery. Id., at 1177-1178. Because the parties had not briefed this court on the applicability (or nonapplicability) of § 618(1) to SER boards specifically, the D.C. Circuit remanded to this court the determination, in the first instance, of whether SER-board proceedings are similarly exempt from civil discovery.
Acting upon an April 4, 2004 referral by this court for discovery disputes, Judge Facciola issued a memorandum opinion ruling on this issue on March 8, 2006. Judge Facciola ruled that § 618(f) did not shield SER-board proceedings from civil discovery, that 10 U.S.C. § 14104 did not bar discovery into SER-board proceedings, and that Navy regulations prohibiting board members from discussing board proceedings did not limit discovery into SER-board proceedings. Chaplaincy of Full Gospel Churches v. England ("Chaplaincy II"), 234 F.R.D. 7 (D.D.C.2006). Additionally, Judge Facciola reaffirmed this court's prior ruling that discovery into SER-board proceedings is discoverable pursuant to Federal Rule of Civil Procedure 26(b)(1) and is not shielded by the deliberative-process privilege. Id. at 12-13 (citingChaplaincy I, 217 F.R.D. at 256-58)., The instant motion for reconsideration followed.
III. ANALYSIS
A. Legal Standard for Review of Magistrate Judge Decisions

A party may invoke Federal Rule 72(a) and Local Rule 72.2 to seek reconsideration of a magistrate judge's determination in a discovery dispute. FED. R.Civ.P. 72(a); LcvR 72.2. Upon review, "the magistrate judge's decision is entitled to great deference" and will not be disturbed "unless found to be `clearly erroneous or contrary to law.'" Boca Investerings P'ship v. United States, 31 F.Supp.2d 9, 11 (D.D.C.1998). "In view of this standard, the court will affirm the magistrate judge's determination unless `on the entire evidence' the court `is left with the definite and firm conviction that a mistake has been committed.'" Neuder v. Battelle Pac. Nw. Nat. Lab., 194 F.R.D. 289 (D.D.C. 2000) (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 365, 68 S.Ct. 525, 92 L.Ed. 746 (1948)); Arakelian v. Nat'l W. Life Ins. Co., 126 F.R.D. 1, 2 (D.D.C.1989).
B. The Court Affirms the Magistrate Judge's Ruling
The defendants raise four principal arguments in challenging Judge Facciola's March 3, 2006 Memorandum Opinion. First, the defendants argue that Navy instruction 1420.1A ("SECNAVINST 1420.1A"), adopted pursuant to a delegation of authority by Congress, protects the Navy from disclosing SER-board proceedings. Defs.' Mot. to Recons. ("Defs.' Mot.") at 8-9. Second, the defendants assert 206*206 that they are protected from civil discovery of SER-board proceedings by 10 U.S.C. § 14101. Id. at 9-10. Third, the defendants argue that as a matter of policy—to encourage "candid discussions" amongst SER board members—the court should not require disclosure of SER-board proceedings. Id. at 12-13. Fourth, the defendants argue that Judge Facciola erred in adopting this court's prior determination that the plaintiffs' discovery request into SER-board proceedings is discoverable under the Federal Rules of Civil Procedure and that the government was not entitled to a deliberative-process privilege. Id. at 13-25. The court addresses each of these arguments. However, because the defendants organized their motion in a disorganized and confused manner, the court will address each of these arguments utilizing its own structure.
1. Judge Facciola Correctly Concluded that 10 U.S.C. 618(1) Does Not Bar Civil Discovery into SER-Board Proceedings
Judge Facciola appropriately begins his analysis with the plain text of the statute.Chaplaincy II, 234 F.R.D. at 11 (citing In re England, 375 F.3d at 1177). Reading the statute, Judge Facciola concluded that 10 U.S.C. § 618(d) does not bar civil discovery into SER-board proceedings. Id.
Section 618(f) provides that "[e]xcept as authorized or required by this section, proceedings of a selection board convened under section 611(a) of this title may not be disclosed to any

person not a member of the board." 10 U.S.C. § 618(f). Referenced explicitly in this provision, § 611(a) "provides authorization to convene `selection boards to recommend for promotion.'" In re England, 375 F.3d at 1181. SER boards, at issue in the instant matter, are convened pursuant to a different statutory provision— § 611(b). 10 U.S.C. § 611(b) (stating that "the Secretary of the military department concerned may convene selection boards to recommend officers for continuation on active duty . . . or for early retirement").
In its analysis of whether § 618(f) constitutes an absolute bar to civil discovery of promotion selection boards, the D.C. Circuit referenced Judge Friendly's description of Justice "Felix Frankfurter's `threefold imperative to law students' in his landmark statutory interpretation course: `(1) Read the statute; (2) Read the statute; (3) Read the statute!'" In re England, 375 F.3d at 1181-1182 (citing Henry J. Friendly,Benchm arks 202 (1967)). Having done just that, Judge Facciola properly concluded that because "the statute contains a strict confidentiality provision for the deliberations of promotion boards, but contains no such provision for continuation on active-duty or selective early retirement boards," the restrictive language of section 618(f) does not apply to SER-board proceedings. Chaplaincy II, 234. F.R.D., at 11;Wilkins v. United States, Slip Op. No. 99-cv-1579, at 7 (S.D.Cal. Dec. 23, 2003) (addressing the precise statutory question at issue here and concluding that because "the statute contains language clearly limiting disclosure for one type of board proceeding (promotion boards), but is silent as to disclosure of another type of board proceeding (retirement boards), the doctrine of expressio unius este exclusio alteriussuggest that the limiting language does not apply to the retirement board"). Accordingly, Judge Facciola's decision is not "clearly erroneous or contrary to law." FED. R. Civ. P. 72(a).
2. Judge Facciola Correctly Concluded that Neither SECNAVINST 1420.1A Nor Subsequent Congressional Action Bar Civil Discovery into SER-board Proceedings
After ruling out § 618(f) as a prohibition to civil discovery of SER-board proceedings,207*207 Judge Facciola turned his attention to the government's argument that SER proceedings are exempt from civil discovery pursuant to an instruction issued by the. Secretary of the Navy, which requires "all selection board members, regardless of the type of board, to take an oath that they will not disclose the board's deliberations."Chaplaincy II, 234 F.R.D. at 11 (quoting Secretary of Navy Instruction 1420.1A ("SECNAVINST 1420.1A")). As the defendants' argument goes, SECNAVINST 1420.1A, issued pursuant to congressional delegation to prescribe regulations for SER boards, "parallels the language of section 618(f) and states that `no member or recorder of a . . . selection board shall disclose the proceedings or recommendations" of the board. Defs.' Mot. at 8. The court cannot agree.

In analyzing the breadth of § 618(f) as it applies to promotion selection boards, the D.C. Circuit noted that "[t]he opening clause of Section 618(f) provides an exception for disclosures `authorized or required' by Section 618 itself." In re England, 375 F.3d at 1177. "In other words," the Circuit stated, "the drafters of Section 618(f) wrote the ban on disclosure in such broad and absolute terms that they felt the need to specify that broad proceedings could be disclosed in connection with the very reason you have them—to submit recommendations to the Secretary of the military department, the Secretary of Defense, and ultimately the President." Id.
In contrast, SECNAVINST 1420.1A contains no such exception. Adopting the D.C. Circuit's logic, this court cannot say that the Secretary of the Navy wrote SECNAVINST 1420.1A in "such broad and absolute terms." Id. Under these circumstances, the court is unwilling to conclude that Judge Facciola committed clear legal error when he concluded that the Secretary of the Navy's regulation does not imbrue SER-board proceedings with a shield from civil discovery not imparted by statute.[3]Baldrige v. Shapiro, 455 U.S. 208*208 345, 360, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982) (noting that the court should strictly construe any law purporting to "`suppress otherwise competent evidence'") (quoting St. Regis Paper Co. v. United States, 368 U.S. 208, 218, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961)); Bartlett v. Bowen, 816 F.2d 695 (D.C.Cir.1987).
The defendants maintain that Congress intended to parallel SECNAVINST 1420.1A in promulgating 10 U.S.C. § 14104, which, the defendants argue, prohibits discovery into SER-board proceedings. Defs.' Mot. at 29-30. Section 14014 states that "[e]xcept as otherwise authorized or required by law, the proceedings of a selection board convened under section 14101 of this title may not be disclosed to any person not a member of the board." 10 U.S.C. § 14104. Judge Facciola, considering the defendants' argument, concluded that the statute does not apply to civil discovery sought through the Federal Rules of Civil Procedure. Chaplaincy II, 234 F.R.D. at 12(indicating that [t]he Federal Rules of Civil Procedure constitute 'law' as that term is ordinarily understood and, therefore, discovery pursuant to those rules would fall within section 14104's "required by law" exception to non-disclosure). Challenging this holding, the defendants maintain that Judge Facciola's interpretation frustrates Congress' intent that 14104's prohibition "parallel . . . the prohibition contained in section 618(f)." Defs.' Mot. at 31 (citing H.R. Rep. 103-84 at 37-38). Contrary to the defendants' position, however, the court gleans Congress' intent not through "the more controversial realm of legislative history," but via the "plain language reading" of the statute. In re England, 375 F.3d at 1178. "Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."[4] Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17

(1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)). The defendants' unitary reference to a House of Representatives report, Defs.' Mot. at 29 (citing H.R. Rep. 103-84 at 18), is insufficient to upset this statutory presumption in this instance. Tax Analysts v. I.R.S., 350 F.3d 100, 104 (D.C.Cir.2003) (citing Russello and refusing "to resort to legislative 209*209 history" given "the clarity of the statute's language and structure"). Had Congress meant to create a statutory bar to civil discovery as robust for SER-board proceedings under § 14104 as that for promotion-board proceedings under § 618(f), its qualification of that provision—"except as otherwise authorized or required by law"—is a curiosity. Accordingly, the court concludes the Judge Facciola's decision in this regard is not clearly erroneous or contrary to law. Chaplaincy II, 234 F.R.D. at 12.
3. Judge Facciola Correctly Concluded that the SER Boards are Relevant under the Federal Rules and are Not Shielded by the Deliberative-Process Privilege
This court previously addressed the defendants' arguments that discovery into the SERboard proceedings is not discoverable under Federal Rule 26(b)(1) and that it is shielded by the deliberative-process privilege. Chaplaincy I, 217 F.R.D. at 256-258. The court rejected both of these arguments. Addressing the relevance of discovery of SER-board proceedings to the allegations in this case, the court found it "hard to argue that the testimony of former selection-board personnel with direct knowledge of board proceedings is not `relevant' and `reasonably calculated to lead to the discovery of admissible evidence' regarding alleged Navy discrimination against non-liturgical chaplains in those very proceedings." Id. at 256 (quoting FED.R.CIV.P. 26(b)(1)).
With respect to the defendants' attempted invocation of the deliberative-process privilege, the court concluded that "[t]he various reports and statistics cited by the plaintiffs are adequate at this stage to support a belief that the Navy engaged in discrimination against non-liturgical chaplains." Id. at 258. From these allegations, the court concluded that "the plaintiffs have provided an adequate factual basis for their belief that the requested testimony will provide evidence of government misconduct." Noting that "[w]hen there is any reason to believe that government misconduct has occurred . . . the deliberative-process privilege disappears altogether," id. at 257 (citing In re Sealed Case, 121 F.3d 729, 746 (D.C.Cir.1997)), the court refused to apply a deliberativeprocess privilege to SER-board proceedings, id. at 258.
Judge Facciola correctly noted that the In re England court did not evaluate this court's ruling on these matters, but addressed solely the applicability of § 618(f) to promotion-board proceedings. Mem. Op. (Mar. 3, 2006) at 12. Though the D.C. Circuit vacated this court's decision with respect to SER boards and remanded for a fresh review in light of its

interpretation of § 618(f), the court's confidence in its previous ruling regarding relevance and the deliberative-process privilege remains undisturbed.
The defendants attempt to reargue these points by providing their own statistics which, they argue, undermine the plaintiffs' allegations. Defs.' Mot. at 17-19. To the contrary, however, these statistics reassure the court of its prior rulings (1) that "[d]iscovery is not to be denied because it relates to a claim or defense that is being challenged as insufficient," and (2) that "a thorough discovery period will greatly assist the court in evaluating the merits of the parties' claims." Chaplaincy I, 217 F.R.D. at 256, 258. For this reason, the court reaffirms its previous holding on these points. Accordingly, the court declines the defendants' invitation to invalidate Judge Facciola's prescience in. anticipating this court's reaffirmation of its prior ruling given the D.C. Circuit's, lack of discussion on these points.
210*210 IV. CONCLUSION
For the reasons stated herein, the court denies the defendants' motion for reconsideration
of the Magistrate Judge's ruling. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 11th day of September 2006.
[1] The court substitutes the current Secretary of the Navy, Donald C. Winter, acting in his official capacity, for his predecessor Gordon R. England. FED.R.CIV.P. 25(d)(1).
[2] The term "accessions" refers to individuals the Chaplain Corps brings into the Navy, either active duty or reserve, as commissioned officers during the current fiscal year. Adair v. England, 217 F.Supp.2d 7, 9 n. 5 (D.D.C. 2002) (quoting the defendants' submission).
[3] By construing SECNAVINST 1420.1A narrowly, Judge Facciola did not need to address the delicate constitutional question (which the plaintiffs urge the court to entertain) of whether the Congress maydelegate to the Navy the authority to exempt executive proceedings from judicial review. Such delegation mayjust throw the constitutional balance of powers among the three branches by"impermissiblythreaten[ing] the institutional integrityof the Judicial Branch." Mistretta v. United States, 488 U.S. 361, 381, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (noting that the court has not "hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authorityand independence of one or another coordinate Branch") (quoting Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 851, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986)). In this regard, the court notes the constitutional harmonyin § 618(f): enabling legislative control over the scope of judicial proceedings involving constitutional questions of executive actions. By contrast, the Secretary of the Navy's regulation, if it precluded civil discovery into SER-board proceedings, would perhaps distort the majestic balance, enabling the executive to shield itself from judicial scrutiny. A. regulation of this sort would assault the judiciary's ability to adjudicate constitutional claims brought against the executive.Id. at 381, 109 S.Ct. 647 (noting that "where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted," and quoting the Federalist Papers for the proposition that "the greatest security . . . against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessaryconstitutional means, and personal motives, to resist encroachments of the others") (quoting The Federalist No. 51, p. 349 (J. Cooke ed.1961)). Tentatively addressing the issue, the defendants argue that the Secretary of the Navy promulgated these regulations pursuant to express congressional delegation. Defs.' Mot. at 28. However, the constitutional concerns regarding the accumulation of power with a single branch of government resounds with equal force whether created through unilateral executive action, or at the acquiescence or urging of Congress. City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (noting that "the courts retain the power, as they have since Marb ury v. Madison,to determine if Congress has exceeded its authorityunder the Constitution").

[4] The Supreme Court noted that "[t]he Russello presumption—that the presence of a phrase in one provision and its absence in another reveals Congress' design—grows weaker with each difference in the formulation of the provisions under inspection." City of Columb us v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002) (citing Russello v. United States,464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983)). The City of Columb us formulation applies with equal force in the inverse—that the Russello presumption grows stronger with less differences in formulation between the provisions under inspection. See, e.g. Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., 2001 WL 483973, *7 (S.D.Ind. 2001) (stating simplythat "[t]he close parallels between the two provisions serve to highlight the difference"). Thus, if Congress intended § 14104 to parallel § 618(0, as the defendants argue, Congress' decision to add the "required by law" qualification to § 14104, where no such qualification exis ts in § 618(0, is stronglypresumed bythis court as intentional and purposeful. Russello, 464 U.S. at 23, 104 S.Ct. 296.

 
 451 F.Supp.2d 210 (2006)
Robert H. ADAIR et al., Plaintiffs, v.
Donald C. WINTER,[1] Secretary of the Navy et al., Defendants. Chaplaincy of Full Gospel Churches et al., Plaintiffs, v.
Donald C. Winter, Secretary of the Navy et al,, Defendants.
Civil Action Nos. 00-0566 (RMU), 99-2945(RMU).
United States District Court, District of Columbia.
September 11, 2006.
211*211 Arthur A. Schulcz, Sr., The Law Office of Arthur A. Schulcz, Sr., Vienna, VA, for Plaintiffs.
Michael Q. Hyde, U.S. Department of Justice, Civil Division/Federal Programs Branc h, Washington, DC, for Defendants.
MEMORANDUM OPINION
URBINA, District Judge.
DENYING THE PLAINTIFFS' MOTION FOR DECLARATORY JUDGMENT
I. INTRODUCTION
The, plaintiffs in this consolidated case are current and former Navy chaplains and an ecclesiastical endorsing agency for military chaplains. The plaintiffs charge that the hiring, retention and promotion policies of the Navy Chaplain Corps demonstrate an unconstitutional endorsement of liturgical Christian sects over non-liturgical Christian sects. Currently before the court is the plaintiffs' motion for declaratory judgment.[2]This motion does not 212*212 directly concern the plaintiffs' underlying constitutional claims. Rather, the plaintiffs' instant motion comprises a constitutional challenge to 10 U.S.C. 618(f),[3] which, as the D.C. Circuit determined in a previous appeal in this case, serves as an absolute bar to civil discovery of the proceedings of Naval officer promotion selection boards. In re England 375 F.3d 1169 (D.C.Cir.2004). In essence, the plaintiffs argue that 618(f), as

applied to their underlying constitutional challenges of Naval policy, denies them an opportunity for meaningful judicial review because the evidence barred by 618(f) is essential to their claims. Because there is no general constitutional right to statutorily privileged evidence essential to establishing a constitutional claim and because evidence of the proceedings of individual promotion boards is not essential to the plaintiffs' constitutional challenges to Naval policies, the court denies the plaintiffs' motion for declaratory judgment.
II. BACKGROUND
A. Factual Background
Because the court has published nearly a dozen opinions in this case, it will dispense with a full recitation of the lengthy cannot meet the burden [and] no evidence of discrimination or discriminatory intent on promotion boards means no facts which meets Plaintiffs' burden; in effect, this means no viable claim and no judicial review"). Also, the plaintiffs have not filed a statement of undisputed material facts, as required by the Local. Rules. LcvR 56.1. and convoluted factual background.[4] The plaintiffs' claims fall into three principal categories: First Amendment Establishment Clause claims, Free Exercise Clause claims and Equal Protection Clause claims. Adair v. England, 183 F.Supp.2d 31, 41 (D.D.C.2002). First, the plaintiffs charge that the Navy has established and maintained an unconstitutional religious quota system which enables the Navy to hire, promote and retain chaplains from liturgical denominations at a rate greater than the liturgical Christian representation among all Navy personnel.Id. at 41-42. Second, the plaintiffs allege a variety of constitutional challenges to the Navy's chaplain-promotion system, including the placement of one Catholic chaplain on each promotion board, the use of chaplains to rate other chaplains, the application of "faith group identifier" codes,[5] and the general domination of promotion boards by liturgical Protestant and Catholic chaplains. Id at 42-44. Finally, the plaintiffs assert that the Navy's discriminatory policies against, and general hostility toward, non-liturgical denominations deny non-liturgical chaplains and their would-be congregants the constitutional right to free exercise of their religion. Id. at 44-45.
213*213 B. Procedural History
Without unnecessarily expending judicial resources providing a full exposition of the lengthy procedural background of this case,[6] the court notes the following. In a previous decision in this case, the court granted the plaintiffs' motion to compel, ruling that 618(f)'s general bar on disclosure did not bar civil discovery of promotion-board proceedings. Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (D.D.C.2003). The D.C. Circuit reversed, holding that 618(f)'s command that promotion-board proceedings "may not be disclosed"

includes "no inherent ambiguity . . . that would justify departing from those plain terms pursuant to a judicially-crafted exception." In re England, 375 F.3d at 1177. The provision, therefore, constitutes an absolute statutory privilege from civil discovery of those proceedings under Rule 26(b)(1) of the Federal Rules of Civil Procedure. Id. As a result of the D.C. Circuit's decision in In re England, the plaintiffs argue that § 618(f) is unconstitutional. The court now turns to the plaintiffs' motion.
III. ANALYSIS
A. The Plaintiffs' Current Constitutional Challenge is Not Barred by the Law-of-the-Case Doctrine
The government argues that by previously questioning the constitutionality of § 618(f) to the D.C. Circuit in In re England, the plaintiffs are barred from raising their present constitutional challenge. Defs.' Opp'n at 10-12. Accordingly, before addressing the difficult constitutional issues posed by the plaintiffs, the court will consider whether the law-of-the-case doctrine bars the plaintiffs from raising those claims. To do so, the court will briefly summarize the issues at play before the D.C. Circuit in In re England and the plaintiffs' arguments levied in that proceeding.
In In re England, the D.C. Circuit ruled that § 618(f) constitutes a statutory bar to civil discovery of promotion-board proceedings. In re England, 375 F.3d at 1181 (stating that despite the "harsh outcome," § 618(f) "applies to block civil discovery of promotion selection board proceedings in civil litigation"). In appellate briefing to the In re England court, the plaintiffs argued that if § 618(f) constituted a statutory bar to civil discovery of promotionboard proceedings, it should not apply in cases (such as this) in which plaintiffs raise constitutional claims. Defs.' Opp'n Ex. 6 at 22.
To support this argument, the plaintiffs relied on Webster v. Doe, id. at 529-32, 108 S.Ct. 2047, a case in which a CIA employee claimed that the CIA violated his constitutional rights by terminating him because of his sexual orientation. Webster v. Doe, 486 U.S. 592, 596, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988). At issue inWebster was Section 102(c) of the National Security Act, which allows the CIA Director to terminate employees whenever he "shall deem such termination necessary or advisable in the interests of the United States." 5 U.S.C. § 701(a)(2). The Court ruled that § 102(c) "fairly exudes deference to the Director, and appears . . . to foreclose the application of any meaningful judicial standard of review." Webster,486 U.S. at 600, 108 S.Ct. 2047. The Court, however, declined to infer that 214*214Congress intended § 102(c) to bar judicial review of constitutional challenges finding no "clear intention" to that effect. Id. The Webster Court utilized this "clear intention"

requirement for interpretations of congressional bars to judicial review of constitutional claims to avoid "the `serious constitutional question' that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim." Id. at 603, 108 S.Ct. 2047 (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n. 12, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986)(noting that "all agree that Congress cannot bar all remedies for enforcing federal constitutional rights") (citation omitted)).
Attempting to shove § 618(1) into the Webster framework, the plaintiffs relied in their appellate brief on the legal assumption that a bar to civil discovery of promotion-board proceedings is tantamount to a legislative attempt to preclude judicial review of their constitutional claims. Defs.' Opp'n Ex. 6 at 22. The D.C. Circuit rejected this argument, noting that "[s]ection 618(f) . . . does not preclude judicial review of the [plaintiffs'] claims, and the government has not argued that it does." In re England,375 F.3d at 1180 n. 2. The Circuit noted that the "plaintiffs here remain free to litigate their discrimination claims and to support them with other evidence." Id.
The law-of-the-case doctrine applies to issues expressly addressed in a previous judicial decision and those issues decided by "necessary implication." Bouchet v. Nat'l Urban League, 730 F.2d 799, 806 (D.C.Cir.1984). Although the plaintiffs raisedWebster concerns to the D.C. Circuit, they did not directly challenge the constitutionality of § 618(f). Rather, the plaintiffs cited Webster to encourage the D.C. Circuit to interpret § 618(1) so as not to bar civil discovery of promotion-board proceedings. Defs.' Opp'n Ex. 6 at 22-23. In interpreting § 618(f), the circuit court rejected the existence of any Webster-like concern. In re England, 375 F.3d at 1180 n. 2. A necessary implication of this ruling, however, is not that the circuit considered, much less ruled, on the constitutionality of § 618(f). Indeed, the plaintiffs could not have challenged the constitutionality of § 618(f) (because of its total bar on civil discovery), until the D.C. Circuit first interpreted the statute as a total bar to civil discovery of promotion-board proceedings. Accordingly, the plaintiffs' constitutional challenge to § 618(f), via its current motion for declaratory judgment, is not barred by the law-of-the-case doctrine. The court now turns to an analysis of the plaintiffs' motion.
B. The Court Denies the Plaintiffs' Motion for Declaratory Judgment
1. Legal Standard for Declaratory Judgment Act
Under the Declaratory Judgment Act, a court "may declare the rights and other legal relations of any interested party" in "a case of actual controversy within its jurisdiction." 28 U.S.C. § 2201(a). "The term `actual' is . . . one of emphasis, and not indicative of a different

standard from Article III as to what qualifies as a controversy."Fed. Express Corp. v. Air Line Pilots Ass'n, 67 F.3d 961, 963 n. 2 (D.C.Cir.1995). "To satisfy the Constitution's case or controversy requirement, a party filing a declaratory judgment action must show that there is a controversy of `sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1073 (D.C.Cir.1998) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)). There must be "a real and substantial controversy admitting of specific 215*215 relief through a decree of a conclusive character as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Fed. Express, 67 F.3d at 963-64. If "an action has no continuing adverse impact and there is no effective relief that a court may grant, any request for judicial review of the action is moot." Sw. Bell Tel. Co. v. Fed. Commc'n Comm'n, 168 F.3d 1344, 1350 (D.C.Cir. 1999). Even if a controversy exists, however, a district court has broad discretion to withhold declaratory judgment. Wilton v. Seven Falls Co., 515 U.S. 277, 287, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (noting "the unique breadth of [a district court's] discretion to decline to enter a declaratory judgment"); Jackson v. Culinary Sch. of Wash., Ltd.,59 F.3d 254, 256 (D.C.Cir. 1995) (stating that the Supreme Court "took great pains to emphasize the singular breadth of the district court's discretion to withhold declaratory judgment").
2. Section 618(f) Does Not Bar Judicial Review of Constitutional Claims and is Not Unconstitutional as Applied to the Plaintiffs
According to the plaintiffs, discovery into promotion-board proceedings constitutes the sole means of collecting evidence to support their underlying constitutional claims. Pls.' Mot. at 13-14. Thus, they argue that by denying discovery into promotion-board proceedings, 618(f) strips them of access to any meaningful judicial review. See, e.g., Pls.' Mot. at 16 (stating that "[t]he practical effect of 618(f)'s bar to discovery is to also bar Plaintiffs' claims that their rights under . . . the Due Process Clause were violated through illegal criteria and considerations in the selection[7]board process and proceedings"); id. at 17 (stating that "[t]o deny the means to obtain such proof is to deny the claim").
The plaintiffs ask the court to rule either (1) that § 618(f) is unconstitutional because it denies judicial review of constitutional claims arising from promotion-board proceedings or (2) that § 618(f), as applied to these plaintiffs, is unconstitutional because it so severely limits relevant discovery so as to deny the plaintiffsmeaningful judicial review of their constitutional claims. For reasons that follow, the court rules that § 618(f) does not bar judicial review of constitutional claims and is not unconstitutional as applied to the plaintiffs.

a. Section 618(f) Does Not Bar Judicial Review of Constitutional Claims
The plaintiffs contend that 618(f) is unconstitutional because it bars judicial review of constitutional claims arising out of promotion-board proceedings. See, e.g., Pls.' Mot. at 22 (arguing that "[b]y barring discovery that provides critical evidence establishing the validity of Plaintiffs' claims, Congress has deprived the courts of judicial review"). The plaintiffs make two principal arguments in support of this position, both of which are unpersuasive.
First, the plaintiffs claim that the In re England court ruled that Congress intended 618(f) to bar judicial review of their claims. See, e.g., Pls.' Mot. at 16. The plaintiffs' interpretation of In re England stems from their reliance on Webster, which requires a "clear statement" of congressional intent for the court to rule that Congress intended to preclude judicial review of colorable constitutional claims. 216*216 See supraat 5-6. As the plaintiffs' argument goes, "[b]y holding that Congress intended to bar discovery into promotion board proceedings . . . In re England implicitly held that Congress intended to extinguish Plaintiffs' constitutional rights." Pls.' Mot. at 16.
This convoluted argument is plausible only if 618(f) precludes judicial review in a similar way as did the National Security Act at issue in Webster—by foreclosing any "judicial standard of review" through statutory delegation of promotion decisions to the sole discretion of the Secretary of the Navy. Webster, 486 U.S. at 600, 108 S.Ct. 2047. Section 618(f), however, does not alter or foreclose any judicial review of Naval policies, it merely restricts the evidence available to the plaintiffs in support of their claims. In re England, 375 F.3d at 1180 n. 2.
Second, the plaintiffs argue that § 618(f) is unconstitutional because it "bars the judiciary from exercising its power to review the constitutional issue arising from or on promotion boards and transfers that power" to the Secretary of the Navy. Pls.' Mot. at 24. In support of this argument, the plaintiffs cite Bartlett v. Bowen, 816 F.2d 695 (D.C.Cir.1987). Id.
In Bartlett, the plaintiff challenged the constitutionality of a provision of the Social Security Act which barred Medicare payments for nursing care to anyone who had received similar care in a Christian Science nursing facility. Id. at 697. At issue in that case was the constitutionality of an amount-in-controversy provision of the Medicare Act that explicitly barred judicial review of any benefits determination when the amount in controversy was less than $1,000.00. Id.

The plaintiffs cite Bartlett for its statement that "a statutory provision precluding all judicial review of constitutional issues removes from the courts an essential judicial function under our implied mandate of separation of powers and deprives an individual of an independent forum for the adjudication of a claim of constitutional right." Pls.' Mot. at 24 (quoting Bartlett, 816 F.2d at 703). The plaintiffs then remind this court that the D.C. Circuit had "little doubt that such a limitation on the jurisdiction of . . . federal courts to review the constitutionality of federal legislation . . . would be an unconstitutional infringement of due process." Id. (quoting Bartlett, 816 F.2d at 703). Though the words cited by the plaintiffs appear at first blush to lend great weight to their argument, the plaintiffs quotation is selective and takes the D.C. Circuit's statement grossly out of context.
Had the plaintiffs quoted the Bartlett court's previous three sentences, the plaintiffs would have learned that the D.C. Circuit's concern for a preclusion of judicial review emanates from a situation in which a plaintiff "would have no judicial forum whatsoever (in either a federal or state court) in which to pursue her constitutional claim." Bartlett, 816 F.2d at 703. The Bartlett court's concern comes into play only in instances in which a litigant "would have no forum at all for the pursuit of her claims."Id. at 703-704 (emphasis in original). As the D.C. Circuit stated, due process places limits on Congress' power "when Congress denies any forum—federal, state or agency—for the resolution of a federal constitutional claim." Id. (emphasis in original).
The present case does not present a situation in which legislation precludes "alljudicial review of constitutional issues." Id. Section 618(f), as the circuit court ruled, simply does not preclude judicial review of the plaintiffs' claims. In re England, 375 F.3d at 1180 n. 2.
217*217 As a corollary to their Bartlett-based constitutional challenge, the plaintiffs argue that 618(f) violates the separation of powers by removing from this court its constitutional authority under Article III. Pls.' Mot. at 25. According to the plaintiffs, a bar of judicial review of constitutional claims realigns the Constitution's assigned powers, expands the congressional power, and "deprive[s] the judiciary of its powers under the Constitution to declare the law." Id. at 21.
Because the plaintiffs' arguments rest on the faulty assumption that 618(f) bars judicial review of the plaintiffs' constitutional claims, the court rejects them. Even if § 618(f) did bar judicial review, however, the plaintiffs' separation of powers argument is without merit. The plaintiffs suggest that § 618(f) "[e]xpands Congress' power over the judiciary by legislatively altering the judiciary's power to review constitutional claims and issues while increasing the executive's power by removing it from judicial accountability." Pls.' Mot. at 21-22. But, the Constitution vests the judicial power in the Supreme Court and "such inferior Courts as the

Congress shall from time to time ordain and establish." U.S. CONST. art. III. That is, a statute proscribing the jurisdiction of the inferior courts or otherwise limits its judicial power "cannot be in conflict with the Constitution." Sheldon v. Sill, 49 U.S. (1 How.) 441, 449 (1850); see also, Webster, 486 U.S. at 611-612, 108 S.Ct. 2047 (Scalia, J., dissenting) (stating that the Court "long ago held that the power not to create any lower federal courts at all includes the power to invest them with less than all of the judicial power") (citingSheldon, 49 U.S. (1 How.) 441).
b. Section 618(f) is Not Unconstitutional as Applied to the Plaintiffs' Claims
The plaintiffs' as-applied challenge to § 618(f) rest on two predicates: (1) that discovery of promotion-board proceedings is essential to the plaintiffs' claims, and (2) that the Constitution confers to civil litigants a right of access to discovery (though privileged), which is essential to their constitutional claims. The court rules that such discovery is not essential to the plaintiffs' challenges to Naval chaplain promotion guidelines and that civil litigants do not have a constitutional right of access to discovery essential to their constitutional claims.
i. Discovery of Promotion-Board proceedings is Not Essential to the Plaintiffs' Claims
The plaintiffs argue that testimony of promotion-board proceedings is essential to their claims because such evidence can establish that the Navy utilized a denominational preference in deciding which chaplains to promote.[8] Pls.' Mot. at 16. According to the plaintiffs, their claims require a showing that "forbidden denominational preferences or improper considerations did, in fact, influence the decisions of the challenged boards," and "[d]irect evidence that discrimination indeed occurred and was intended can only come from the testimony of board personnel."Id. at 17. In support of this position, the plaintiffs cite Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), Wallace v. Jaffree, 472 U.S. 38, 58-59, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), Edwards v. Aguillard, 482 U.S. 578, 587, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). Pls.' Mot. at 18-19. The plaintiffs' reliance on these 218*218cases is misplaced and demonstrates the plaintiffs' confusion between challenges to actions by government actors and challenges to agency policy.
The cases cited by the plaintiffs do not stand for the proposition that a plaintiff cannot establish a claim of discrimination absent proof that government actors themselvesdiscriminated by implementing an allegedly discriminatory policy. These cases involve judicial inquiry into the legislative motives for the allegedly discriminatory law

or policies, not the motivations of government officials in implementing those laws or policies.[9] See, e.g., Larson, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (reviewing the comments of legislators prior to enactment of a statute in determining that the statute "does not operate evenhandedly [among religious groups], nor was it designed to do so"); Wallace, 472 U.S. at 58-59, 105 S.Ct. 2479 (reviewing the legislative history of a statute requiring a moment of silence at the beginning of each school day before determining that the practice had no secular purpose); Edwards,482 U.S. at 587, 107 S.Ct. 2573 (reviewing the statement of the legislative sponsor of a bill requiring educators to teach creation science in conjunction with evolution as evidence that the purpose of the bill was "to, narrow the science curriculum").
The plaintiffs' claims do not depend on demonstrating that individual promotion boards applied an impermissible denominational preference. The plaintiffs also challenge several Navy promotion policies themselves (irrespective of the intentions of the promotion board members operating under those policies). The plaintiffs challenge the Navy's prac tice of identifying the faith group of the chaplain under consideration by promotion board members, the policy of allowing Chiefs or Deputies of Chaplains to approve the membership of promotion boards, and the alleged practice of "stacking" boards with liturgical chaplains to the exclusion of non-liturgical chaplains. See generally Compl. Evaluation of the board "stacking" claim, for example, to the extent it results from a tacit rather than express Navy policy, cannot possibly depend on testimony from individual board members regarding decisions made after having been placed on the board. Similarly, the plaintiffs' allegation that the Navy instituted a "thirds policy," in which it reserves one-third of its slots in the Chaplain Corps for liturgical Christians does not depend on testimony about the actual proceedings of individual promotion boards. While § 618(f) prevents individual board members from testifying about the proceedings of a selection board, it does not preclude testimony of board members or Navy administrators 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.
As the court noted previously, the Supreme Court has rejected the position that "the plaintiffs . . . should have to shoulder `a burden of unmistakable clarity' to demonstrate 'government favoritism for specific sects' in order to hold the favoritism in 219*219 violation of the Establishment Clause." Adair v. England, 217 F.Supp.2d 7, 14 (D.D.C.2002) (quoting County of Allegheny v. ACLU, 492 U.S. 573, 608-09, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989)). Instead, when litigants challenge a policy on the grounds that it amounts to a denominational preference, while not explicitly discriminating on the basis of religion, they must only present competent evidence that "`suggest [s] a denominational preference'" to trigger strict scrutiny. Id. (quoting.County of Allegheny, 492 U.S. at 608-609,

109 S.Ct. 3086) (emphasis added). The plaintiffs challenge the Navy's policies, not simply the alleged impermissible intentions and actions of individual board members.[10]
Although discovery into the proceedings of individual promotion boards is relevant to the plaintiffs' claims concerning individual boards' actions, such evidence is not a necessary element of a claim of religious discrimination. Indeed, the plaintiffs proffered substantial statistical and demographic data related to the hiring, promotion, and selection for early retirement of Naval chaplains. Pls.' Mot. Ex. 6. This data may constitute compelling evidence suggesting an intent to employ a denominational preference in promotion decisions. See Defs.' Opp'n Ex. 11 (Wilkins v. United States, Civ. No. 99-CV-1579-IEG, Slip Op. at 15 (S.D.Cal.2005) (reviewing competent statistical evidence of the retirement recommendation rates for liturgical and nonliturgical Naval Chaplains as evidence indicating the absence of a discriminatory intent in permitting chaplains to sit on selection boards)).
To summarize, the plaintiffs challenge both Naval policies and actions of specific promotion boards. Regarding their challenge to Naval policies, discovery of specific promotion-board proceedings are not essential to their constitutional claims. Regarding the plaintiffs' challenges to specific promotion boards, because the plaintiffs have available to them other evidence supporting their claims (e.g. statistical data), discovery of promotion-board proceedings, though relevant, is not essential.
ii. Discovery into Promotion-Board proceedings is Not Constitutionally Required
The second predicate of the plaintiffs' as-applied challenge is more novel and is based on the proposition that litigants 220*220 have a constitutional right of access to evidence essential to establishing constitutional claims, even when that evidence is privileged by statute. The Supreme Court has never announced such a right, and the plaintiffs have advanced no coherent theory supporting one.[11]
Supreme Court precedent suggests that when Congress creates a discovery privilege, the fact that evidence qualifying under the privilege is essential to a constitutional claim cannot defeat the privilege. In Baldrige v. Shapiro, 455 U.S. 345, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982), the city of Denver, Colorado sought to compel disclosure of "raw" federal census data that included questionnaires from individual persons and address lists under Rule 26 of the Federal Rules of Civil Procedure and the Freedom of Information Act. Id. at 348-52, 102 S.Ct. 1103. The city of Denver sought such data to challenge the accuracy of the census, which it alleged had erroneously undercounted the city's population. Id. at 351, 102 S.Ct. 1103. The city argued that it would be under represented in Congress as a result of this

undercount. Id.; see also U.S. CONST. art I, 2, cl. 3 (requiring that representation in the House of Representatives be apportioned among states based on their population as determined by the census). The Census Act, however, prohibited the disclosure of such data. Baldrige, 455 U.S. at 354-55, 102 S.Ct. 1103; 13 U.S.C. 9(a) (prohibiting the Census Bureau from disclosing census data whereby "the data furnished by any particular establishment or individual . . . can be identified").
The district court in Baldrige concluded that without this census information, "the city was denied any meaningful ability to challenge the Bureau's data." Baldrige, 455 U.S. at 351, 102 S.Ct. 1103. Nevertheless, the Supreme Court ruled that the Census Act was an absolute privilege from civil discovery of raw census data. Id. at 361, 102 S.Ct. 1103 (citing 13 U.S.C. § 9(a)). And because Congress is "vested by the Constitution with authority to conduct the census `as they shall by Law direct,'" the privilege was a valid exercise of congressional authority, the wisdom of which was "not for [the Court] to decide in light of Congress' 180 years' experience with the census process." Id. at 361, 102 S.Ct. 1103. Despite the city of Denver's demonstrated need for the information, "[a] finding of `privilege' . . . shields the requested information from disclosure". Id. at 362, 102 S.Ct. 1103.
Although the Court did not address whether a different analysis is appropriate for constitutional claims, the city of Denver's interest in congressional representation according to an accurate determination of its population is arguably equally as weighty as those constitutional rights implicated in the plaintiffs' complaint. SeeReynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (holding that the Equal Protection Clause demands "no less than substantially equal state legislative representation for all citizens"). Furthermore, and as discussed infra, the Constitution confers broad authority to Congress to "make Rules for the Government and Regulation of the land and naval forces," U.S. CONST. art. II, 8, cl. 14, similar to the specific power granted to conduct the decennial census "in such Manner as [Congress] shall by Law direct . . ." Id. art. I, 2, cl. 3.
221*221 Generally speaking, criminal proceedings are the only context in which statutory rules prohibiting the introduction of certain kinds of evidence yield to constitutional rights afforded criminal defendants.[12] Nevertheless, under the plaintiffs' theory, whenever a plaintiff brings a constitutional claim and asserts that the evidence is essential to the claim, courts would have to disregard evidentiary privileges, including possibly, privileges for state secrets, information implicating national security, information privileged by the attorneyclient privilege, and other such important and universally recognized privileges.[13]
Though § 618(f) may have a collateral effect on a plaintiffs' ability to access evidence relevant to the litigation of constitutional claims (and may undercut the likelihood of the

plaintiffs' ultimate success on the underlying merits), the court recognizes no constitutional right of access to discovery in this circumstance, in large part because of Congress' plenary power to regulate the Navy. Article II gives Congress the power "to provide and maintain a Navy," U.S. CONST. art. II, 8, cl. 13, and "[t]o make Rules for the Government and Regulation of the land and naval forces." Id. art. II, 8, cl. 14. The "specificity" with which these "technically superfluous grant[s] of power" are given to Congress by the Constitution denotes the "insistence . . . with which the Constitution confers 222*222 authority over the Army, Navy, and militia upon the political branches." United States v. Stanley, 483 U.S. 669, 681-82 & n. 6, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); see also Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97 L.Ed. 842 (1953) (ruling that "judges are not given the task of running the Army. The responsibility for setting up channels through which . . . grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates"). "The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters." Orloff, 345 U.S. at 93-94, 73 S.Ct. 534.
The plaintiffs argue that the goals furthered by 618(f) are presumptively invalid in the face of demonstrated need by the plaintiffs in alleging constitutional violations. Pls.' Mot. at 35-36 (asking the court to find § 618(f) invalid, in part, because "Congress has identified no national threat which it must protect by giving deliberations on promotions top secret' security classification, nor has it explained how hiding unconstitutional conduct contributes to the national defense"). Contrary to this position, however, the D.C. Circuit has cited with approval the executive branch's concerns which underlie § 618(f). As the circuit stated, § 618(f) is meant to encourage "frank and open discussion" regarding promotion decisions, a goal that would be seriously inhibited if such discussions were "open to public scrutiny." In re England, 375 F.3d at 1169 (quoting Gordon R. England, Secretary of the Navy). The circuit continued by stating that "[d]isclosure of selection board proceedings in civil discovery would certainly undermine, if not totally frustrate, the purpose of Section 618(f)." Id., at 1178.
The role of federal courts in reviewing legislation governing the exercise of military powers is necessarily limited, particularly regarding hiring and promotion decisions, to "ensure that the courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings, a result that would destabilize military command and take the judiciary far afield of its area of competence." Miller v' Dep't of Navy,383 F.Supp.2d 5, 10 (D.D.C.2005); see also Mier v. Owens, 57 F.3d 747, 751 (9th Cir.1995) (describing the promotion of military officers as "one of the most obvious examples of a personnel action that is integrally related

to the military's structure"). For these reasons, courts are deferential to congressional decisions as to the appropriate structure of the military and the rules governing its internal operations, including the decision embodied in 618(f) to shield promotion-board proceedings from later disclosure. See Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973) (noting that the Constitution vests "complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force" exclusively in the legislative and executive branches).
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 declines to adopt the plaintiffs' theory that the Constitution requires discovery in derogation of an absolute statutory privilege. The court holds that 618(f) is not unconstitutional as applied to the plaintiffs' claims.
223*223 IV. CONCLUSION
For the foregoing reasons, the court denies the plaintiffs' motion for declaratory judgment. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 11th day of September, 2006.
[1] The court substitutes the current Secretary of the Navy, Donald C. Winter, acting in his official capacity, for his predecessor Gordon R. England, FED.R.CIV.P. 25 (d)(1).
[2] The plaintiffs, in the alternative, move for summaryjudgment. Pls.' Mot. at 14. The court is at a loss as to how the present motion is one for summaryjudgment, even in the alternative. The motion focuses solelyon the constitutionalityof 10 U.S.C. 618(f)'s bar to discovery, not on the plaintiffs' underlying constitutional and statutory claims. Id. In deed, the plaintiffs' central argument is that without discovery into promotion -board proceedings, they will be unab le to prove their claims. Bizarrely, in their reply, the plaintiffs suggest that if the court denies the plaintiffs' motion for declaratoryjudgment, the court should grant summaryjudgment in the defendants' favor. Pls.' Reply at 6 (arguing that "[w]here the plaintiff has the burden, all the defendant must do is show that the plaintiff
[3] Section 618(f) provides that "[e]xcept as authorized or required by this section, proceedings of a selection board convened under section 611(a) of this title may not be disclosed to any person not a member of the board." 10 U.S.C. § 618(f).
[4] For a detailed account of the factual allegations underlying both complaints, see Adair v. England,183 F.Supp.2d 31, 34-38, 40-45 (D.D.C.2002). In January 2001, the court's Calendar Committee transferred these cases from Judge June L. Green to this member of the court. Prior to the transfer, and pursuant to the parties' joint recommendation, Judge Green consolidated the two cases for pretrial purposes. Order (Sept. 26, 2000).
[5] Although promotion boards mayconsider onlymerit and not denominational affilia tion, a three-digit "faith group identifier" code, which identifies the denominational affiliation of the candidate being considered, is allegedly prominentlydisplayed during the promotion process. Compl. at 37. For example, 500 signifies a Catholic and 5 23 signifies a Southern Baptist. Pls.' Mot. at 3 n. 2.
[6] Most recently, the court denied the plaintiffs' motion for a temporaryrestraining order blocking the Navy from discharging plaintiff Michael Belt and other naval chaplains from active duty in February, 2006. Chaplaincy of Full

Gospel Churches v. England, 417 F. Supp 2d 1 (D.D.C.2006). On April 20, 2006, the D.C. Circuit summarilyaffirmed this court's denial of injunctive relief. Adair v. Holderb y, No. 06-5074 (D.C.Cir. April 20, 2006).
[7] Although this case involves' challenges to selection board practices, the current motion concerns onlythe plaintiffs' lack of access to discovery of promotion-board proceedings. In re England, 375 F.3d at 11811182 (reserving judgment on "whether proceedings of other statutory selection boards are discoverable"). The court presumes, therefore, that the plaintiffs' reference to selection boards rather than promotion boards is in error.
[8] In a previous ruling, the court noted that "if the plaintiffs can demonstrate after discovery that some or all of the Navy's policies suggest a denominational preference, then the court will apply strict scrutiny to those policies and practices ." Adair, 217 F.Supp.2d at 14-15.
[9] The court notes that, given the uncertainty as to the controlling test for Establishment Clause claims, evidence of an impermissible purpose maynot be required. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 690, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring) (stating that "[t]he purpose prong of the Lemon test asks whether [the] government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid").
[10] Actually, were the plaintiffs' claims limited to allegations" of illegal conduct by individual promotion boards and board members, the plaintiffs mayhave failed to exhaust their administrative remedies. Previously, the court rejected the defendants' arguments that the plaintiffs should be required to exhaust their remedies within the Navy before challenging Naval promotion policies in court. Adair, 183 F.Supp.2d at 55. The court based its decision on the fact that the plaintiffs challenge specific policies of the Navy in their complaint, the constitutionalityof which are "essentiallylegal issues." Id. Similarly, the Ninth Circuit distinguished claims bymilitarychaplains challenging the "structure of the Chaplain Corps" and "policies affecting the structure of the military chaplaincy"—which were not subject to exhaustion requirements—from those alleging "administrativelycorrectable procedural errors, even when these errors are failures to follow due process." Wilkins v. United States, 279 F.3d 782, 786, 789 (9th Cir.2002). The Board of Corrections of Naval Records ("BCNR") has the power to review a promotion board's recommendations to the Secretary of the Navy to determine if the board followed selection guidelines and applied proper criteria in making its decisions. 10 U.S.C. § 1552(a); Saad v. Dalton, 846 F.Supp. 889, 891 (S.D.Cal. 1994) (holding that a Naval officer was required to exhaust her administrative remedies before bringing a constitutional claim challenging the decision to separate her from active duty). Because Naval guidelines do not permit promotion decisions based on religious affiliation, individual board decisions violating thos e guidelines are redressible, first, through the BCNR process.
[11] The plaintiffs' only argument that denial of access to such evidence implicates the Constitution is based on cases discussing the implications of a congressional preclusion of access to "any forum" for consideration of constitutional claims. As previouslyexplained, supra at 10-11, this reliance is unpersuasive.
[12] See Chamb ers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (holding that the Sixth Amendment right to compulsoryprocess guarantees the admission of hearsayevidence, even when it does not fall into an established hearsayexception, when the evidence is critical and bears persuasive assurances of trustworthiness); see also Holmes v. South Carolina,___ U.S. ___, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (indicating that a state rule of evidence yields to a criminal defendant's constitutional right to a "meaningful opportunity to present a complete defense" when the state rule is "arbitrary" and not based on "any legitimate interest"); cf. Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (holding that the Confrontation Clause of the Sixth Amendment prohibits introduction of "testimonial" hearsaystatements unless the declarant is unavailable and the defendant had a prior opportunityto cross -examine the declarant). It is unclear, however, whether the Constitution requires introduction of privileged evidence critical to a criminal defendant's defense. See Washington v. Texas, 388 U.S. 14, 23 n. 21, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (applying the CompulsoryProcess Clause to defeat a state evidence rule, but noting that "[n]othing in this opinion should be construed as disapproving testimonial privileges . . ."); Morales v. Portuondo, 154 F.Supp.2d 706 (S.D.N.Y. 2001) (holding that the priest-penitent privilege could not prevent introduction of evidence the exclusion of which would render the defendant's trial fundamentallyunfair).
[13] Although the plaintiffs appear to concede that privileges for evidence implicating national securityconcerns are sufficientlyweighty to justify barring discovery of evidence essential to even a constitutional claim, Pls.' Reply at 25, they propose no feasible method for the court to render this balance on a case -by-case basis. While judicial balancing is appropriate in determining whether to recognize a privilege pursuant to Rule 501 of the Federal Rules of Evidence, a statutory privilege represents a conclusion of both the legislative and executive branches that the

interests furthered by the privilege outweighs the "normallypredominant principle of utilizing all rational means for ascertaining truth." Trammel v. United States, 445 U.S. 40, 50-51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). The plaintiffs have articulated no rationale supporting the position that federal courts should supplant this bicameral determination. In re England, 375 F.3d at 1180-1181 (stating that the D.C. Circuit's "unwillingness to soften the import of Congress' chosen words even if we believe the words lead to a harsh outcome is longstanding. It results from `deference to the supremacyof the Legislature, as well as recognition that Congressmen typically vote on the language of a bill'") (quoting Lamie v. United States Tr., 540 U.S. 526, 539, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004)).

 
 512 F.Supp.2d 58 (2007)
In re NAVY CHAPLAINCY.
Misc. Action No. 07-0279 (RMU).
United States District Court, District of Columbia.
October 1, 2007.
59*59 Arthur A. Schulcz, Sr., Law Office of Arthur A. Schulcz, Sr., Vienna, VA, for Plaintiffs.
Daniel Edward Bensing, Michael Q. Hyde, Civil Division, Federal Programs Branch, Thomas Edward Caballero, Office of Senate, Legal Counsel, Washington, DC, for Defendants.
MEMORANDUM OPINION
RICARDO M. URBINA, District Judge.
I. INTRODUCTION
In the latest iteration of this longstanding dispute between non-liturgical naval chaplains ("the plaintiffs") and the United States Navy and various naval officers ("the defendants"), the defendants move the court to reconsider its order denying an appeal of Magistrate Judge Facciola's ruling that the plaintiffs are entitled to discovery of the deliberations of Selective Early Retirement ("SER") boards. The defendants supplement their motion with a request for a protective order to effectuate the court's ruling should it find in their favor. In support, the defendants argue that a new federal statute — enacted after the court affirmed the magistrate judge's order — plainly prohibits the civil discovery of selection board deliberations. The plaintiffs characterize the statute as ambiguous by propounding a conflict with federal statutory and constitutional causes of action supposedly impaired by application of the statute's evidentiary privilege. Because the plaintiffs manufacture this purported conflict contrary to clear law, the court grants the defendants' motion to reconsider and grants the defendants' request for a protective order recognizing that the deliberations of the SER boards are privileged.
II. BACKGROUND
A. Factual History

The plaintiffs[1] in this case allege that the Navy established, promoted and maintained religious quotas and other discriminatory practices in the Navy Chaplain Corps in violation of the First and Fifth Amendments. Second Am. Compl. at 2. According to the plaintiffs, until the 1980s, the Navy hired chaplains from various faith groups based on objective criteria, such as the relative percentage a religion represented in the total American population. Id. at 23-24. In response to a shift in America's religious demographics away from liturgical Protestant denominations and toward non-liturgical Christian faith groups, however, the Navy allegedly abandoned its objective criteria and adopted a subjective "thirds policy." Id. at 24. Under the thirds policy, the Navy allegedly reserved one-third of its Chaplain Corps slots for Catholics, one-third for liturgical Protestants and one-third for members of all other religions (including non-liturgical Protestants). Id.
According to the plaintiffs, the Navy applied the thirds policy not only to accessions [2]but also to promotions and retentions. 60*60 Id. at 25. To identify officers for promotion and early retirement, the Navy uses selection boards that evaluate a chaplain's capacity and potential for further service. Id. at 28, 30 (citing 10 U.S.C. §§ 612 et seq.). The plaintiffs allege that to maintain liturgical control of the Chaplain Corps, the Navy uses the promotion and SER boards to diminish non-liturgical chaplains' opportunities for promotion and to "thin down" the number of non-liturgical chaplains at the higher ranks by forcing them out of service. Id. at 24, 28, 32-33. In support of their allegations, the plaintiffs set forth various statistics and anecdotal evidence.E.g., id. at 4-9, 14-17, 19-20, Exs. 2-4, 6. The plaintiffs also point to a 1995 report ("the Ellis Report") finding a "clear" and "disconcerting" institutional bias against non-liturgical chaplains in key Navy positions and a 1997 report ("the Stafford Report") concluding that one promotion board "may have systematically applied a denominational quota system, perhaps to ensure balanced denominational representation across the Chaplain Corps." Id. at 26-27, 32, Exs. 5, 8.
B. Procedural History
The genesis of this contested question dates back five years to the plaintiffs' October 29, 2002 motion to compel discovery of the Navy's promotion board proceedings and deliberations. Pls.' Mot. for an Order Requiring Def. Sec'y of the Navy to Release Personnel Associated with Chaplain Promotion Boards from their Oath Not to Disclose Promotion Board Proceedings ("Pls.' Mot. to Compel") at 1. There, the plaintiffs contended that the testimony of selectionboard personnel was material to their claims and that the Navy had refused to allow such personnel to testify on the grounds that the proceedings of a selection board "may not be disclosed to any person not a member of the board." Id. at 1 (quoting 10 U.S.C. § 618(f)). On September 2, 2003, the court granted the plaintiffs' motion, ruling (1) that the requested testimony was relevant to the plaintiffs' claims, (2) that the information

sought was not shielded from civil discovery by the deliberative-process privilege and (3) that 10 U.S.C. § 618(f) did not bar limited discovery. Adair v. Johnson, 217 F.R.D. 250 (D.D.C.2003) ("Chaplaincy I"). On appeal, the D.C. Circuit reversed in part and vacated and remanded in part. In re England, 375 F.3d 1169 (D.C.Cir.2004). The Circuit ruled that 10 U.S.C. § 618(f) in conjunction with 10 U.S.C. § 611(a) constitutes an absolute bar to disclosure of promotion selection board proceedings in civil discovery. Id. at 1177-1178. Because the parties had not briefed this court on the applicability of § 618(f) to SER boards, the D.C. Circuit remanded to this court for determination, in the first instance, of whether SER-board proceedings are similarly exempt from civil discovery.
Acting upon an April 4, 2004 referral by this court for discovery, disputes, Judge Facciola issued a memorandum opinion ruling on this issue on March 8, 2006. Judge. Facciola ruled that neither 10 U.S.C. § 618(f), 10 U.S.C. § 14104, nor Navy regulations shielded SERboard proceedings from civil discovery. Chaplaincy of Full Gospel Churches v. England ("Chaplaincy II "), 234 F.R.D. 7 (D.D.C.2006). Additionally, Judge Facciola reaffirmed this court's prior ruling that discovery into SER-board proceedings is discoverable pursuant to Federal Rule of Civil Procedure 26(b)(1) and is not shielded by the deliberative-process privilege. Id. at 12-13 (citingChaplaincy I, 217 F.R.D. at 256-58). The defendants appealed Judge Facciola's 61*61decision, but this court denied the appeal. Adair v. Winter, 451 F.Supp.2d 202, 204 (D.D.C.2006).
On October 17, 2006, the President signed the National Defense Authorization Act for Fiscal Year 2007, H.R. 5122, 109th Cong. (2006); Pub.L. No. 109-364, § 547, 120 Stat. 2216. Section 547 of the Act amended Title 10, replacing 10 U.S.C. § 618(f) with 10 U.S.C. § 613(a). The new federal statute' broadened the nondisclosure clause of the Act to include all board deliberations convened under 10 U.S.C. § 611, which includes SER-boards. 10 U.S.C. § 613(a). The defendants filed a motion for reconsideration of the court's denial of their appeal. With briefing on the motion concluded, the court now draws to a close the extended debate surrounding this contested question.
III. ANALYSIS
A. The Court Grants the Defendants' Motion to Reconsider
1. Legal Standard for a Motion to Reconsider an Order
A district court may revise its own interlocutory decisions "at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."

FED.R.Civ.P. 54(b); see also Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C.2000) (citing Federal Rule of Civil Procedure 60(b)'s Advisory Committee Notes). Reconsideration of an interlocutory decision is available under the standard, "as justice requires." Childers, 197 F.R.D. at 190.
2. 10 U.S.C. § 613(a) Prohibits Discovery of SER-Board Proceedings
The plaintiffs do not dispute that the primary effect of 10 U.S.C. § 613(a) is to broaden the nondisclosure clause of the statute to include all Navy board deliberations and proceedings convened under 10 U.S.C. § 611, which includes SER boards. Pls.' Opp'n to Pefs.' Mot. for Reconsid. (Pls.' Opp'n) at 44-46. Because this constitutes a dispositive change in law by itself sufficient to carry the defendants' motion for reconsideration and a protective order barring discovery, the plaintiffs propose alternative grounds for denying the motion for reconsideration. The plaintiffs argue that their causes of action against the defendants for alleged violations of the Religious Freedom and Restoration Act ("RFRA") and the United States Constitution preclude a straight-forward interpretation of § 613(a). Id. Specifically, they contend that to deny them discovery of SER-board proceedings would effectively deny them judicial review of their causes of action by denying them the evidence necessary to vindicate them. Id. at 21-31. The defendants respond that the courts have already considered this precise objection on multiple occasions — and consistently dismissed it as meritless. Defs.' Reply at 7.
The defendants' memory is not flawed. The legal authority dismissing the plaintiffs argument is definitive, superior, conclusive and recent. The United States Supreme Court, in interpreting the confidentiality provisions incorporated by Congress into the Census Act, has held that, "[a] finding of `privilege' . . . shields the requested information from disclosure despite the need demonstrated by the litigant." Baldrige v. Shapiro, 455 U.S. 345, 362, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982). In such cases, "information may be withheld, even if relevant to the lawsuit and essential to the establishment of plaintiff's claim," id. at 360, 102 S.Ct. 1103, whether statutory or constitutional, id. at 351, 102 S.Ct. 1103. The D.C. Circuit directly applied this reasoning to the facts of this 62*62 case in the very ruling that remanded the case back to this court. See In re England, 375 F.3d at 1179, 118081 (acknowledging the breadth of the, privilege but "unwilling[] to soften the import of Congress' chosen words even if . . . the words lead to a harsh outcome"). And, finally, as recently as last year, this court itself entertained an identical argument by the plaintiffs regarding § 618(f). Adair v. Winter, 451 F.Supp.2d 210, 219-223 (D.D.C.2006). The court devoted a substantial portion of its opinion to carefully considering this same argument and ultimately held that:

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 declines to adopt the plaintiffs' theory that the Constitution requires discovery in derogation of an absolute statutory privilege.
Adair, 451 F.Supp.2d at 222. The court reaffirms its conclusion today. 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.
IV. CONCLUSION
For the foregoing reasons, the court grants the defendants' motion for reconsideration and for a protective order. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 1st day of October, 2007.
[1] For readability, the court refers to the plaintiffs and the defendants collectively, even though the three member cases comprising this consolidated miscellaneous action did not proceed as one until June 18, 2007. Mem. Order (June 18, 2007).
[2] The term "accessions" refers to individuals the Chaplain Corps brings into the Navy, either active duty or reserve, as commissioned officers during the current fiscal year. Adair v. England, 217 F.Supp.2d 7, 9 n. 5 D.D.C.( 2002) (quoting the defendants' submission).

 
 850 F.Supp.2d 86 (2012)
In re NAVY CHAPLAINCY.
Miscellaneous Action No. 07-269 (RMU).
United States District Court, District of Columbia.
March 21, 2012.
90*90 Arthur A. Schulcz, Sr., The Law Office of Arthur A. Schulcz, Sr., Vienna, VA, for In re Navy Chaplaincy.
MEMORANDUM OPINION
DENYING THE PLAINTIFFS' MOTION TO ALTER OR AMEND THE COURT'S JANUARY 10, 2002 INTERLOCUTORY JUDGMENT, OR, IN THE ALTERNATIVE, TO CERTIFY JUDGMENT; DENYING PLAINTIFF CHAPLAINCY FULL GOSPEL CHURCHES' MOTION TO ALTER OR AMEND THE COURT'S AUGUST 17, 2000 INTERLOCUTORY JUDGMENT, OR, IN THE ALTERNATIVE, TO CERTIFY JUDGMENT; GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' MOTION FOR PARTIAL DISMISSAL.
RICARDO M. URBINA, District Judge.
I. INTRODUCTION
This matter is before the court on the plaintiffs' motion to alter or amend the court's interlocutory judgment that was issued on January 10, 2002, or, in the alternative, to certify the judgment for appeal under Federal Rule of Civil Procedure 54(b). The court further considers a similar motion filed by one of the plaintiffs, the Chaplaincy of Full Gospel Churches ("CFGC"), requesting that the court alter or amend its August 17, 2000 decision, or, in the alternative, that it certify judgment. Lastly, the court addresses the defendants' motion for partial dismissal. For the reasons explained below, the court denies both of the plaintiffs' motions to alter or amend the court's previous judgments, as well as the

alternative requests for certification under Rule 54(b). Furthermore, the court grants in part and denies in part the defendants' motion for partial dismissal.
II. FACTUAL & PROCEDURAL BACKGROUND
Because the court has published more than a dozen opinions in this case, it will dispense with a full recitation of its 91*91 lengthy and convoluted background.[1] For ease and readability, however, the court presents here a skeletal description of the plaintiffs' claims,[2] offering a more comprehensive background throughout its discussion where such information proves necessary.
Briefly stated, the plaintiffs claim that the Department of the Navy and several of its officials (collectively, "the defendants") have discriminated against the plaintiffs on the basis of their religion, by establishing, promoting and maintaining "illegal religious quotas" and religious preferences in their personnel decision-making. Adair v. England, Civ. No. 00-566 ("Adair"), 4th Am. Compl. ¶ 1; Chaplaincy of Full Gospel Churches v. England, Civ. No. 99-2945 ("CFGC"), 4th Am. Compl. ¶ 1; Gibson v. Dep't of Navy, Civ. No. 06-1696 ("Gibson"), Am. Compl. ¶ 1. More specifically, the plaintiffs allege that the Navy discriminates against members of "non-liturgical" religions[3] when making decisions for the promotion, accession,[4] retention and separation of Navy chaplains. Adair, Mem. Op. (Jan. 10, 2002), 183 F.Supp.2d at 37-41.
Three cases were commenced, all raising "substantially similar constitutional challenges to the Navy Chaplaincy program." In re Navy Chaplaincy, Miscellaneous No. 07-269, Mem. Order (June 18, 2007) at 3-4. The court ultimately determined that these cases, Adair v. England, CFGC v. England and Gibson v. Dep't of the Navy,should be consolidated under the caption In re Navy Chaplaincy. See id. at 4.
Although their constitutional challenges are nearly identical, the plaintiffs in each case are varied. The Adair plaintiffs are 17 current and former non-liturgical chaplains in the Navy. Adair, Mem. Op. (Jan. 10, 2002), 183 F.Supp.2d at 35. In the CFGC case, the plaintiffs are composed of an endorsing agency for non-liturgical military chaplains called the Chaplaincy of Full Gospel Churches and seven of its individual members. Id. Lastly, the Gibson plaintiffs consist of 41 individual plaintiffs and one organizational plaintiff, the Associated Gospel Churches, which is "a fellowship of non-denominational, evangelical churches." Gibson, Am. Compl. ¶ 3.
In the latest iteration of this longstanding dispute, the plaintiffs move the court to alter or amend two of its previous judgments. Alternatively, the plaintiffs ask the court to certify

these judgments for appeal under Rule 54(b). The defendants, for their part, move the court to partially dismiss the plaintiffs' claims. With the parties' respective motions ripe for consideration, the court turns to the parties' arguments and the applicable legal standards.
92*92 III. ANALYSIS
A. The Court Denies Both of the Plaintiffs' Rule 54(b) Motions
1. Legal Standard for Altering or Amending an Interlocutory Judgment
A district court may revise its own interlocutory decisions "at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." FED.R.CIV.P. 54(b); see also Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C.2000) (citing the Advisory Committee Notes to Federal Rule of Civil Procedure 60(b)). The standard for the court's review of an interlocutory decision differs from the standards applied to final judgments under Federal Rules of Civil Procedure 59(e) and 60(b). Compare Muwekma Tribe v. Babbitt, 133 F.Supp.2d 42, 48 n. 6 (D.D.C.2001) (noting that "motions for [relief upon] reconsideration of interlocutory orders, in contrast to motions for [relief upon] reconsideration of final orders, are within the sound discretion of the trial court") and United Mine Workers v. Pittston Co., 793 F.Supp. 339, 345 (D.D.C. 1992) (discussing the standard applicable to motions to grant relief upon reconsideration of an interlocutory order)with LaRouche v. Dep't of Treasury, 112 F.Supp.2d 48, 51-52 (D.D.C.2000)(analyzing the defendant's motion for relief from judgment under Rule 60(b)) andHarvey v. District of Columbia, 949 F.Supp. 878, 879 (D.D.C.1996) (ruling on the plaintiff's motion to alter or amend judgment pursuant to Rule 59(e)). A motion pursuant to Rule 59(e), to alter or amend a judgment after its entry, is not routinely granted. Harvey, 949 F.Supp. at 879. The primary reasons for altering or amending a judgment pursuant to Rule 59(e) or Rule 60(b) are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. Id.; Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996) (per curiam); FED.R.CIV.P. 60(b); LaRouche, 112 F.Supp.2d at 51-52.
By contrast, relief upon reconsideration of an interlocutory decision pursuant to Rule 54(b) is available "as justice requires." Childers, 197 F.R.D. at 190. "As justice requires" indicates concrete considerations of whether the court "has patently misunderstood a party, has made a decision outside the adversarial issues presented to the [c]ourt by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the

court." Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C.2004) (internal citation omitted). These considerations leave a great deal of room for the court's discretion and, accordingly, the "as justice requires" standard amounts to determining "whether [relief upon] reconsideration is necessary under the relevant circumstances." Id. Nonetheless, the court's discretion under Rule 54(b) is limited by the law of the case doctrine and "subject to the caveat that, where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Singh v. George Washington University, 383 F.Supp.2d 99, 101 (D.D.C.2005) (internal citations omitted).
2. Legal Standard for Rule 54(b) Certification of Final Judgment
Federal Rule of Civil Procedure 54(b) allows a district court in a case with multiple parties or multiple claims to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties 93*93 only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." FED.R.CIV.P. 54(b). The purpose of Rule 54(b) is to "mediate[] between the sometimes antagonistic goals of avoiding piecemeal appeals and giving parties timely justice." Taylor v. Fed. Deposit Ins. Corp., 132 F.3d 753, 760 (D.C.Cir.1997).
Whether a case is one of the "exceptional cases" qualifying for Rule 54(b) certification is a decision that falls within the discretion of the district court, which is "most likely to be familiar with the case and with any justifiable reasons for delay."Bldg. Indus. Ass'n of Super. Calif. v. Babbitt, 161 F.3d 740, 743 (D.C.Cir.1998)(quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 100 L.Ed. 1297 (1956)). Under the rule, "the district court [functions] as a dispatcher, determining in its sound discretion when a claim should proceed on to appellate resolution and when it should await its fellows." Petties v. District of Columbia, 227 F.3d 469, 472 (D.C.Cir.2000) (internal quotations omitted); see also Hill v. Henderson, 195 F.3d 671, 672 (D.C.Cir.1999) (describing Rule 54(b) as an "escape hatch" permitting a partial disposition to become a final judgment).
The district court, however, must make certain determinations on the record before the appellate court can acquire jurisdiction. Bldg. Indus. Ass'n, 161 F.3d at 743; see also Haynesworth v. Miller, 820 F.2d 1245, 1253 (D.C.Cir.1987) (noting that a district court's "[f]ailure to take the steps specified in Rule 54(b) is more than a mere technicality; without compliance, a federal court of appeals lacks jurisdiction to entertain challenges to the order"). First, the district court must ensure that it is dealing with a final judgment: "final" in the sense that it is "an ultimate disposition of an individual claim entered in the course of a multiple claims action," and "a `judgment' in the sense that it determines a claim for

relief." Bldg. Indus. Ass'n, 161 F.3d at 744 (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980)).
Second, the court must determine whether there is any just reason for delay, keeping in mind that "[n]ot all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims." Id. (quoting Curtiss-Wright Corp., 446 U.S. at 8, 100 S.Ct. 1460). Before "departing from the norm" by certifying a final judgment, the court "must take into account judicial administrative interests," including "such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals." Id. (emphasis in original) (quoting Curtiss-Wright Corp., 446 U.S. at 8, 100 S.Ct. 1460); see also Hill, 195 F.3d at 672 (noting that when review is deferred, "it is less likely that the appellate court will face overlapping issues and circumstances on two occasions"). The court must also consider the equities involved. Bldg. Indus. Ass'n, 161 F.3d at 744 (citing Curtiss-Wright Corp., 446 U.S. at 8, 100 S.Ct. 1460).
3. The Plaintiffs' Motion to Alter or Amend the Court's January 10, 2002 Judgment, or, in the Alternative, to Certify Judgment
a. The Court's January 10, 2002 Judgment & Subsequent Related Litigation
On January 10, 2002, the court issued a memorandum opinion that granted in part a motion to dismiss that had been previously 94*94 filed by the defendants. See generally Adair, Mem. Op. (Jan. 10, 2002), 183 F.Supp.2d 31. Of particular relevance here, the court determined that the plaintiffs failed to state a claim with respect to allegations that the defendants had violated the Establishment Clause by allowing chaplains to rate other chaplains and permitting more than one chaplain to sit on a chaplain selection board. Id. at 59-60. Guided by well-settled case law that requires a court to presume that government officials will conduct themselves properly and in good faith, the court refused to assume, despite the plaintiffs' urging, 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." Id. at 60. The court further rejected the plaintiffs' contention that "having chaplains rate other chaplains delegates a religious function to the governmental body," concluding instead that "Navy chaplains are first and foremost Naval officers," and as such

are presumed to undertake the duties of an officer in good faith. Id. The court further agreed with the defendants' reasoning that it made sense to allow chaplains to rate other chaplains because "the Chaplain Corps fulfills a unique mission within the Navy that requires it to perform duties significantly different from those of Naval line officers and Naval officers in other staff corps." Id. at 61.
Citing these same reasons, the court also dismissed the plaintiff's claim that "having more than one chaplain on a board would provide an opportunity for religious bias because selection boards will inherently discriminate among religious denominations based on their own preferences." Id. at 61. The court took particular note of the fact that "the plaintiffs never explain[ed] why having one chaplain on a promotion board is constitutional, but having more than one chaplain is unconstitutional." Id.
Immediately after the opinion was issued, the plaintiffs asked the court to reconsider its dismissal of the plaintiffs' claim that "having chaplains sit on chaplain promotion boards and allowing chaplains to rate other chaplains are practices that violate the First Amendment." CFGC, Mem. Op. (Aug. 5, 2002), 209 F.R.D. 1, 3. The court subsequently denied that motion, explaining that it had "reviewed the plaintiffs' allegations in the light most favorable to the plaintiffs and ruled that those allegations failed to state a claim for relief as a matter of law." Id. at 4.
The plaintiffs subsequently moved for entry of final judgment, a request that was also denied by the court. See generally id., Order (May 6, 2004). The court agreed with the plaintiffs that its decision to dismiss the claims concerning the rating of chaplains by other chaplains and sitting on promotion boards was a "final judgment" for purposes of Rule 54(b). Id. at 6. It determined, nevertheless, that the equities of the case did not merit certification, expressing concern that allowing the plaintiffs to appeal the dismissed claims before the resolution of their other claims would result in unnecessary piecemeal litigation. Id. at 7.
The plaintiffs have now filed yet another motion requesting that the court alter or amend its January 10, 2002 ruling. See generally Pls.' 1st Mot. to Alter or Amend. Specifically, the plaintiffs seek relief upon reconsideration of the court's decision to dismiss the plaintiffs' claims that chaplains should not rate other chaplains and that more than one chaplain should not sit on a promotion board. Id.
b. The Court Denies the Plaintiffs' Motion to Alter or Amend the Court's January 10, 2002 Judgment, or, in the Alternative, to Certify Judgment

In asking the court to reconsider the aforementioned rulings, the plaintiffs argue 95*95that evidence revealed during discovery that took place after the court's 2002 ruling shows that chaplains serve on selection boards as denominational representatives. Pls.' 2d Mot. for Recons. at 4. The plaintiffs point to military regulations to support their assertions that chaplains are hired to represent their religious organizations and are therefore treated distinctly from other Naval officers. Id. at 15. The plaintiffs maintain that because a chaplain's "unique" role involves simultaneous service as a denominational representative and a military officer, he or she cannot be expected to "be like all other officers merely because [her or she] walk[s] into a selection board room." Id.
The plaintiffs further assert that discovery produced by defendants since 2006 has demonstrated that "[t]hose denominations whose members appear most often on boards have statistically higher candidate selection rates."[5] Id. at 18. According to the plaintiffs' expert, when a candidate for promotion shared a denomination with a board member, there was a statistically significant higher chance that he or she would fare better in the selection process. Id. The plaintiffs thus draw the "inescapable conclusion" that when chaplains make decisions to award or deny government benefits to other chaplains, they "act like denominational representatives and favor those most like themselves," thereby violating the Establishment Clause.Id.
The defendants argue, among other things, that the plaintiffs' submissions "are duplicative of the allegations in the dismissed claims and therefore immaterial." Defs.' Opp'n to Pls.' Mot. to Alter or Amend at 8. The defendants further contend that the plaintiffs' evidence does not support that "the law somehow requires [the chaplains to represent their faith group] when serving on promotion boards or in reviewing the performance of other chaplains." Id.
The Circuit has described the role of chaplains within the service as "`unique' [because it] involve[s] simultaneous service as clergy or a `professional representative' of a particular religious denomination and as a commissioned naval officer." In re England, 375 F.3d 1169, 1171 (D.C.Cir. 2004). The court wholeheartedly agrees with this assessment, as well as with the plaintiffs' assertion that "the chaplains[] religious identities make them unlike all other naval officers." Pls.' 1st Mot. to Alter or Amend the Court's Jan. 10, 2002 J. ("Pls.' 1st Mot. to Alter or Amend") at 15. In fact, the dual role of chaplains as officers and religious representatives was specifically and expressly taken into account by this court in its January 10, 2002 judgment. Adair, Mem. Op. (Jan. 10, 2002), 183 F.Supp.2d at 61("Another persuasive reason to allow chaplains to rate other chaplains is that the Chaplain Corps fulfills a unique mission within the Navy that requires it to perform duties significantly different from those of Naval line officers and Naval officers in other staff corps.").

Nevertheless, the court remains unconvinced that simply because a Navy chaplain is forced to wear two "hats" in the course of executing his or her duties, 96*96 he or she will necessarily engage in biased decision-making when reviewing other chaplains. The plaintiffs do not allege that as a denominational representative chaplains are expected to engage in bigotry or discrimination. See generally Pls.' 1st Mot. to Alter or Amend. Nor do they argue that "every chaplain serving as a board member allows his denominational background and identity to influence his decision." Id. at 34 ("The question is not whether every chaplain serving as a board member allows his denominational background and identity to influence his decision, but whether somechaplains, intentionally or unintentionally, allow their denominational background and role as denominational representatives to influence their decisions.").
To successfully state a claim that these challenged policies are facially unconstitutional, the plaintiffs would have to allege that "no set of circumstances exist" under which this policy would be constitutional. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). They have not alleged this, however. To the contrary, the plaintiffs appear to concede that some chaplains may review other chaplains and sit on promotion boards without allowing their denominational background and identity to influence their decisions. Pls.' 1st Mot. to Alter or Amend at 34. Moreover, as noted by the defendants, the chaplains are "required by Congress and the Navy to swear that they will carry out their duties on selection boards `without prejudice or partiality,'" and that their recommendations are in the best interest of the Navy. Defs.' Opp'n at 13; see also In re England, 375 F.3d 1169, 1173 (D.C.Cir.2004) ("By statute, each member of a selection board must take an oath to perform his duties `without prejudice or partiality and having in view both the special fitness of officers and the efficiency of [the Navy].'" (quoting 10 U.S.C. § 613)).
The court therefore remains persuaded that circumstances exist under which the Navy's policies for selection boards would be considered constitutional (for instance, when chaplains sitting on selection boards act according to their official directives and not according to personal bias). Accordingly, the plaintiffs have not advanced any evidence or argument that would warrant the alteration or amendment of the court's prior dismissal of the plaintiffs' claims that the defendants' policies to have chaplains rate other chaplains or to have more than one chaplain sit on a review board facially violate the Establishment Clause.
The court is mindful that the plaintiffs have advanced substantial evidence in support of their arguments that for certain individual chaplains, their role as a denominational representative may, in fact, impact their decision-making process with respect to reviewing other chaplains. See Pls.' 1st Mot. to Alter or Amend at 31 (noting that expert analysis "clearly

shows denomination is an important factor in determining which denominational representatives are awarded or denied government benefits). To be clear, the court's 2002 dismissal of these two claims does not prevent the plaintiffs from pursuing their other claims that "some board members advance their own denominations in violation of the Establishment and Due Process Clauses,"Adair 4th Am. Compl. ¶ 85, or that the Navy has established "denominational goals" and a "hierarchy of preferred religious traditions" in violation of the First and Fifth Amendments, id. ¶¶ 42-53, 59-71. In other words, to the extent that the plaintiffs raise an "as applied" challenge to the promotion boards and rating processes, the 2002 dismissal does not apply 97*97 to those claims. See Infra Part III. B.4.
Lastly, the court turns to the plaintiffs' alternate request for certification under Rule 54(b). The parties have previously litigated this precise issue, and the court has already stated its reasons for refusing to certify final judgment for these same claims.See generally Adair, Mem. Op. (May 6, 2004), 221 F.R.D. 255. The court will not needlessly repeat its reasoning here, and, accordingly, denies the plaintiffs' motion.
4. Plaintiff CFGC's Motion to Alter or Amend the Court's August 17, 2000 Judgment, or, in the Alternative, to Certify Judgment
a. The Court's August 17, 2000 Judgment & Subsequent Related Litigation
On August 17, 2000, the court granted in part and denied in part a motion to dismiss that had been submitted by the defendants in the CFGC case.[6] See generally CFGC, Mem. Op. (Aug. 17, 2000). In particular, the court determined that the organizational plaintiff, CFGC, ("Plaintiff CFGC") lacked standing to assert claims on its own behalf, but that it did have standing to raise claims on behalf of its members.Id. at 8-19.
Plaintiff CFGC has now filed a motion seeking that the court alter or amend its August 17, 2000 judgment that Plaintiff CFGC does not have standing to bring suit on its own behalf. See generally CFGC's Mot. to Alter or Amend. In the alternative, Plaintiff CFGC requests that the court certify its judgment under Rule 54(b). Id.
b. The Court Denies Plaintiff CFGC's Motion to Alter or Amend the Court's August 17, 2000 Judgment, or, in the Alternative, to Certify Judgment

Plaintiff CFGC argues that at the time of the court's 2000 ruling, the court "did not fully understand (1) CFGC's mission or responsibilities as a [Department of Defense] endorser, (2) CFGC's actual process of obtaining clergy as chaplain applicants and (3) its continuing responsibility to support its endorsed chaplains once CFGC applicants are appointed as such." CFGC's Mot. to Alter or Amend at 5. Plaintiff CFGC advances new evidence of the defendant's alleged religious discrimination and argues that the defendant's discriminatory acts have frustrated Plaintiff CFGC's ability to meet its "mission to recruit charismatic clergy for the Navy Chaplain Corps and has caused [] `concrete and demonstrable injury to the organization's activities — with the consequent drain on the organization's resource,' proving standing." Id. at 31-32. The defendants assert that relief under Rule 54(b) would be improper because "nothing [Plaintiff CFGC] now argue[s] is substantively different than the arguments rejected by the Court in August 2000." Defs.' Opp'n to CFGC's Mot. to Alter or Amend at 5.
The court's August 17, 2000 memorandum opinion clearly acknowledged that the purpose of CFGC was to "find[] and endorse[] [non-liturgical protestant] clergy to meet the Department of Defense standards for commission as a chaplain in the armed forces." CFGC, Mem. Op. (Aug. 17, 2000) at 4. The court also recognized that once a candidate enters the Corps, Plaintiff CFGC continued to "provid[e them98*98 with] spiritual and professional guidance," and that the organization had "begun monitoring promotions and providing [its endorsed chaplains with] transition assistance to the civilian sector." Id. Further, the court's 2000 opinion noted that Plaintiff CFGC spent approximately $700 in the endorsement of each candidate, and that, in turn, each endorsed chaplain provided Plaintiff CFGC with a monthly payment, which generated the main source of income for the organization. Id. at 3-4. The court also credited that Plaintiff CFGC had stopped its candidate endorsements to the Navy Chaplaincy Corps due to the difficulty that it had experienced in recruiting non-liturgical protestant chaplains for the Navy. Id. Additionally, for purposes of ruling on the motion to dismiss, the court accepted as true all of the plaintiffs' allegations, including allegations that the defendants' discriminatory actions had caused Plaintiff CFGC harm. Id. at 2.
Thus, it appears that contrary to Plaintiff CFGC's assertions, the court thoroughly understood Plaintiff CFGC's mission as an endorser, as well as the recruiting process, the continuing responsibility by Plaintiff CFGC to support endorsed chaplains once appointed and the financial effects that the defendants' alleged acts were having on Plaintiff CFGC. See CFGC, Mem. Op. (Aug. 17, 2000) at 2-4. In addition to understanding these vital facts, the court correctly referred to Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) as the controlling precedent to determine whether an organization has standing to bring a claim on its own behalf. Id. at 10. Indeed, Plaintiff

CFGC agrees that Havensprovides the correct applicable legal standard. Pls.' Mot. to Alter or Amend at 10. Under Havens, the court then accurately noted that an organization may have standing to bring suit on its own behalf if the alleged actions by the defendant caused it an injury in fact. CFGC, Mem. Op. (Aug. 17, 2000) at 8-9.
Guided by a firm understanding of the applicable law and the relevant facts, the court in its August 17, 2000 ruling concluded that Plaintiff CFGC had "not alleged sufficient programmatic injuries that go to the heart of its organizational purposes," because it was "not in the business of lobbying the [Department of Defense] or ensuring equal protection for all [non-liturgical protestant] clergy within the armed forces." Id. The court rejected the arguments by Plaintiff CFGC that it had directed considerable resources to minimize the effect of the defendants' alleged discrimination, noting that Plaintiff CFGC's "primary function is limited to sponsorship of clergy" and not to providing such assistance to the chaplains. Id. at 10. Ultimately, the court concluded that because "the Defendants' alleged activity ... [was] not at `loggerheads' with [Plaintiff CFGC's] mission and does not constitute injury in fact," Plaintiff CFGC did not have standing to bring this suit in its own right. Id.
As noted above, Rule 54(b) motions are not simply an opportunity to reargue facts and theories upon which a court has already ruled. Black v. Tomlinson, 235 F.R.D. 532, 533 (D.D.C.2006). Plaintiff CFGC's motion nevertheless appears to do precisely that. Pls.' Mot. to Alter or Amend at 10. The value of Plaintiff CFGC's purported "new evidence" would merely be to establish the truthfulness of the allegations of discrimination, allegations that the court, in its August 17, 2000 ruling, would have assumed as true prior to dismissing the claims at issue. See CFGC, Mem. Op. (Aug. 17, 2000) at 2 (accepting as true all of the plaintiffs' allegations). Accordingly, the court declines to alter or amend its judgment.
99*99 The court now turns to Plaintiff CFGC's alternative request for certification of the court's 2000 ruling as final judgment under Rule 54(b). Plaintiff CFGC argues that certification is appropriate because the court's August 17, 2000 ruling "is a final judgment on less than all of the plaintiff's claims, is separable from the remaining claims and there is no just reason for delay in bringing its review before the Court of Appeals." CFGC's Mot. to Alter or Amend at 39. The defendants contend that "neither the equities of this case nor the interests of judicial administration favor Plaintiffs' request for entry of a final judgment." Defs.' Opp'n to CFGC's Mot. to Alter or Amend at 14. More specifically, the defendants argue that "there is no harm to Plaintiffs if entry of a final judgment as to the question of CFGC's direct organizational standing is deferred until all of the claims are decided," because "CFGC is still a Plaintiff in its representative capacity, and may still participate in the litigation to the extent that the chaplains it represents also possess Article III standing." Id. at 14.

In determining whether to certify this issue as a final judgment under Rule 54(b), the court considers whether, after taking into account judicial administrative interests and the equities involved, certification is appropriate. Bldg. Indus. Ass'n, 161 F.3d at 744. Here, the court is not persuaded that either judicial interests or equities weigh in favor of certification. Plaintiff CFGC acknowledges that, notwithstanding the court's August 17, 2000 opinion, it maintains organizational standing as a representative, and, at this point, there is no reason to question whether Plaintiff CFGC can pursue all of its claims by nature of its representative standing.[7] Thus, this case may properly advance with Plaintiff CFGC as a litigant, and any issues of direct organizational standing, to the extent that they are still relevant, may be addressed alongside other claims in any appeal that may result. Accordingly, because the case is not an "exceptional case" meriting Rule 54(b) certification, and for reasons of judicial economy and equities, the court determines that the plaintiffs are not entitled to Rule 54(b) certification. Bldg. Indus. Ass'n, 161 F.3d at 743.
B. The Court Grants in Part and Denies in Part the Defendants' Motion for Partial Dismissal
1. Legal Standard for Motion to Dismiss Pursuant to Rule 12(b)(1)
Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C.Cir.2004) (noting that "[a]s a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction").
Because "subject-matter jurisdiction is an `Art[icle] III as well as a statutory 100*100requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir. 2003)(quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Because subject matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state

a claim. See Macharia v. United States, 334 F.3d 61, 64, 69 (D.C.Cir.2003); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). Thus, the court is not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Instead, "where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981)).
2. Legal Standard for Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir. 2003) (citing FED.R.CIV.P. 8(a)(2) and Conley v. Gibson,355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." Conley,355 U.S. at 47-48, 78 S.Ct. 99 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint,Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000) (internal quotation marks and citation omitted).
Yet, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating the oft-quoted language from Conley,355 U.S. at 45-46, 78 S.Ct. 99, instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that "no set of facts in support of his claim [] would entitle him to relief"). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 101*101 U.S. at 556, 127 S.Ct. 1955). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations — including mixed questions of law and fact — as true and draw all reasonable inferences therefrom in the plaintiff's favor. Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004); Browning, 292 F.3d at 242. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal,129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
3. The Court Denies the Defendants' Motion to Dismiss the Gibson Plaintiffs' Promotion and Selective Early Retirement Claims Due to Their Failure to Exhaust Administrative Remedies
a. The Gibson Plaintiffs' Claims Challenging the Defendants' Promotion and Selective Early Retirement Systems
The defendants move to dismiss the Gibson plaintiffs' "counts 1, 2, [and] 3 in their entirety and parts of Gibson counts 11 and 13." Defs.' Mot. for Partial Dismissal at 9. Generally, as the defendants describe, these counts all raise challenges to the Navy's "personnel management systems," the decision-making systems that control the promotions, accession, retention and selective early retirement of chaplains. Id.As elaborated upon further below, the Gibson plaintiffs specifically challenge the policies and practices that the Navy relies on to periodically review chaplains for promotion and selective early retirement ("promotion boards" and "selective early retirement boards").
In count one of their complaint, the Gibson plaintiffs allege that "the Navy's arbitrary... goals and/or quotas established and maintained unconstitutional religious preference systems." Gibson, Am. Compl. ¶ 30. According to these plaintiffs, the Navy Chaplain Corps has rejected otherwise qualified non-liturgical chaplain candidates because of its "bias against their faith group's beliefs, traditions and worship practices." Id. ¶ 36. Specifically, the Gibson plaintiffs allege that the Navy Chaplain Corps has used a quota system, or a "Thirds Policy," to discriminate against non-liturgical chaplains who seek to join or to be promoted within the Corps. See id. ¶¶ 30-42. They allege that "[b]y policy and practice, [the Navy Chaplain Corps] has established a favored set of denominations for use on selection boards which distribute government benefits," and, conversely, that due to such a policy of

denominational preference, non-liturgical members were not allowed to participate in promotion board memberships at the same rate that other denominational members were allowed. Id.¶¶ 38-39. Similarly, the Gibson plaintiffs argue that "statistical analysis shows [that] the Navy had a favorite set of denominations it routinely used for chaplain selection boards," and that such favoritism impacted the retention rate of non-liturgical chaplains. Id. ¶¶ 40-41.
Similarly, under count two, the Gibson plaintiffs reassert that "the Navy has established a hierarchy of preferred religious traditions." Id. ¶ 43. Again, they restate that "this preference priority forms the basis for populating the selection boards," 102*102which "in turn controls the mix of denominations which are selected into, promoted within, or involuntarily retired from the U.S. Navy Chaplain Corps." Id. ¶ 46. They specifically allege that "[t]he Navy has used the [Selective Early Retirement] process to reduce the number of higher ranking Nonliturgical chaplains" and to ensure "domination of the [Navy Chaplain Corps] by the liturgical tradition." Id. ¶ 54.
In count three, the Gibson plaintiffs charge that "[t]he Navy's chaplain selection board system and its procedures are unconstitutional" because they provide "an unchallenged opportunity for religious bias or denominational issues to interfere with selecting the best qualified chaplains for promotion." Id. ¶¶ 57, 70. The Gibsonplaintiffs allege that these unlawful selection policies are also used to determine the composition and the decisionmaking process of the selective early retirement boards and promotion boards, thus violating the First and Fifth Amendment and the Religious Freedom Restoration Act. Id. ¶¶ 73-77.
Count eleven alleges that "senior chaplains and other Navy officials have concealed and denied evidence of prejudice and bias in the selection process, including the Navy's faith group quotas." Id. ¶ 132. In so doing, the Gibson plaintiffs claim that officials in the Navy Chaplain Corps have breached their duty "to report wrongdoing" and "to reveal the true nature of and prejudice in the Navy's promotion and other career-related systems to plaintiffs and all other class members who have raised questions about the fairness and equity of the promotion process." Id.
Finally, in count thirteen, the Gibson plaintiffs allege that the Navy Chaplaincy Corps violated the First Amendment by engaging in a "recruiting policy requiring all chaplains to assist in recruiting chaplains." Id. ¶ 140. According to the Gibsonplaintiffs, the Navy's policy for recruiting chaplains required current chaplains "to furnish names of prospective seminary graduates and other clergy to the [Corps] for recruiting purposes, and [to] speak positively of the Corps." Id. ¶ 145.

b. The Parties' Arguments
The defendants argue that the court lacks jurisdiction to adjudicate the Gibsonplaintiffs' allegations that relate to the Navy's promotion and selective early retirement processes because the Gibson plaintiffs have failed to timely exhaust their administrative remedies by not first obtaining the review of a "special selection board" or "special board," as is required by law. Defs.' Partial Mot. to Dismiss at 11. The defendants thus urge the court to dismiss for lack of jurisdiction "each of the [c]ounts asserted by the Gibson [p]laintiffs insofar as it concerns promotion and selective early retirement board decisions." Id.
The Gibson plaintiffs contend that they were "not required to exhaust their administrative remedies before challenging [the d]efendant's promotion and [selective early retirement] processes." Gibson Pls.' Opp'n to Defs.' Partial Mot. at 4. Among other arguments, the Gibson plaintiffs declare that a statutory exception to the jurisdiction-stripping provision applies to their claims. Id. In their reply, the defendants acknowledge that there is a statutory exception to the jurisdiction-stripping provision for challenges to "the validity of a law, regulation, or policy relating to selection boards," but they maintain that the exception does not apply because the Gibsonplaintiffs are challenging the outcome of the "individual selection board proceedings."Id.
c. Legal Framework: 10 U.S.C. § 1558(f) and § 628(h)
In 2001, Congress enacted legislation that limits a court's jurisdiction over those 103*103actions filed on or after December 28, 2001 that seek judicial review of a decision or recommendation by certain military boards. See 10 U.S.C. §§ 1558(f), 628(h). More specifically, the relevant provisions require that a person seeking judicial review of a decision made by a "selection board" or a "promotion board" must first exhaust his or her administrative remedies by resorting to a "special board" or a "special selection board," respectively.[8] See 10 U.S.C. §§ 1558(f), 628(h).
Under 10 U.S.C. § 1558(f)(1), a provision titled "Judicial Review,"
[a] person seeking to challenge an action or recommendation of a selection board, or an action taken by the Secretary of the military department concerned on the report of a selection board, is not entitled to relief in any judicial proceeding unless the action or recommendation has first been considered by a special board under this section or the Secretary concerned has denied the convening of such a board for such consideration.

Id. § 1558(f)(1) (emphasis added). Similarly, 10 U.S.C. § 628(h), entitled "[l]imitations of other jurisdiction," forbids any "court of the United States" from considering "a claim based to any extent on the failure of a person to be selected for promotion by a promotion board," unless "the person has first been referred by the Secretary concerned to a special selection board convened under [10 U.S.C. § 628] and acted upon by that board and the report of the board has been approved by the President."Id. § 628(h)(1) (emphasis added).
The plain language of these statutes indicates that a district court may review the special selection board's or a promotion board's decisions only after a special board (for challenges to a special selection board's decision) or a special selection board (for challenges to a promotion board's decision) first considers a plaintiff's claim. 10 U.S.C. §§ 1558(f), 628(h); see also Blackmon-Malloy v. United States Capitol Police Bd., 575 F.3d 699, 704 (D.C.Cir.2009) (observing that determining whether a statute's exhaustion requirements are jurisdictional "is a question of statutory interpretation"); Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin. Inc., 502 U.S. 32, 44, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991) (determining that the district court lacked jurisdiction because the relevant statute had "provide[d the Court] with clear and convincing evidence that Congress intended to deny the District Court jurisdiction" to review the case); Randolph-Sheppard Vendors of Am. v. Weinberger,795 F.2d 90, 101-103 (D.C.Cir.1986) (noting that "the inclusion of a detailed grievance procedure to resolve [] disputes ... was the strongest evidence of Congressional intent" that a party must exhaust administrative remedies before resorting to the federal courts). Thus, a court lacks jurisdiction to review decisions by the promotion boards and special selection boards if a plaintiff fails to exhaust his or her administrative remedies under § 1558 and § 628. See Nat'l Coal. 104*104 to Save Our Mall v. Norton, 269 F.3d 1092, 1095 (D.C.Cir.2001) (determining that Congress's "unequivocal intent to cut off judicial review" for a specific type of claim meant that the court lacked jurisdiction over that claim); Cotrich v. Nicholson, 2006 WL 3842112, at *2 (M.D.Fla. Dec. 19, 2006) (dismissing the case, inter alia, for lack of jurisdiction due to the plaintiff's failure to exhaust the administrative procedures in § 1558).
There is, however, one critical exception. Under § 1558 and § 628, "nothing" limits "the jurisdiction of any court of the United States under any provision of law to determine the validity of any law, regulation, or policy relating to selection boards." 10 U.S.C. §§ 1558(g), 628(i). Stated otherwise, under § 1558(g) and § 628(i), a court retains jurisdiction to review the actions by a selection or promotion board so long as the claim seeks judicial review of the "validity of any law, regulation, or policy relating to selection boards." 10 U.S.C. §§ 1558(g), 628(i).

d. The Court Retains Jurisdiction Notwithstanding the Exhaustion Requirements of 10 U.S.C. § 1558 and § 628
To determine whether the Gibson plaintiffs' claims fall within the exception to the jurisdiction-stripping provisions delineated above, the court must consider whether the Gibson claims require the court to determine "the validity of any law, regulation, or policy relating to selection boards." 10 U.S.C. §§ 1558(g), 628(i). In doing so, the court limits its inquiry to those claims that the defendants specifically contend should be dismissed pursuant to the exhaustion jurisdictional requirements: counts one, two, three, eleven and thirteen of the Gibson plaintiffs' complaint. Defs.' Mot. for Partial Dismissal at 910.
Under § 1558 and § 628, the court may only exercise jurisdiction over those claims that challenge the validity of any law, regulation, or policy that "relat[es] to selection boards" or, in other words, those claims that challenge a law, regulation or policy that has a connection or relationship to selection boards. See Merriam-Webster Dictionary, http://www.merriamwebster.com/dictionary/relate (last visited Nov. 30, 2011); see also Engine Mfrs. Ass'n. v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004) ("Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose" (internal quotation marks omitted)). The term "selection boards," in turn, refers to boards that are convened by the Navy for the purpose of, among other things, recommending persons for promotion and retirement. See 10 U.S.C. § 1558(b)(2)(A) (defining "selection board").
In reviewing counts one, two and three of the Gibson complaint, it is clear that resolving these claims would require the court to opine on the validity of policies relating to selection boards. See 10 U.S.C. § 1558(g), 628(i). In these counts, theGibson plaintiffs specifically challenge the policies used by the Navy to determine the composition and guide the decision-making of both the promotion and the selective early retirement boards. See supra Part III.B.3.a (describing the claims in further detail). Because counts one, two and three assert challenges to the validity of policies relating to selection boards, the court concludes that it maintains jurisdiction to review these claims pursuant to the statutory exceptions of § 628(i) and § 1558(g).
With respect to counts eleven and thirteen, the court notes that the jurisdictional strictures of § 1558(f) and § 628(h) apply 105*105 to claims in which the plaintiffs are asking the court to review discrete personnel actions by a selection board or a promotion board. See 10 U.S.C

§§ 1558(f), 628(h). Counts eleven and thirteen do not, however, challenge specific personnel actions of a promotion board or selection board. Gibson Am. Compl. ¶¶ 132, 140. Instead, those claims allege that the Navy has concealed evidence of prejudice and has illegally required chaplains to assist in recruitment efforts. Because the court is not persuaded that these claims fall under the jurisdictional strictures of § 628(h) and § 1558(f), the court concludes that its jurisdiction to entertain those claims is not limited by the statutory exhaustion requirements set forth in § 628(g) and § 1558(f). Accordingly, the court denies the defendants' motion for partial dismissal insofar as it contends that the plaintiffs failed to exhaust their administrative remedies. See 10 U.S.C. §§ 1558(g), 628(i).
4. The Court Grants in Part and Denies in Part the Defendants' Motion to Dismiss the Plaintiffs' Claims Regarding the Composition of the Promotion and Selective Early Retirement Selection Boards
The defendants argue that the court should dismiss those claims by the plaintiffs that "challeng[e] the composition of the Navy Chaplain Corps selection boards." Defs.' Mot. for Partial Dismissal at 12-13. According to the defendants, the plaintiffs claim "that a Chaplain Corps policy of assigning chaplains from a variety of faith group categories to serve on promotion and selective early retirement boards represents something of a per se constitutional violation." Id. at 13. The defendants maintain that "the [c]ourt has already rejected th[ese] very claim[s] pursuant to [Rule] 12(b)(6)" in its previous January 10, 2002 memorandum opinion and "should do so again in these consolidated cases."[9] Id. at 13, 16; see also Adair, Mem. Op. (Jan. 10, 2002), 183 F.Supp.2d at 59-60.
The plaintiffs contend that in arguing that the court has already ruled on their claims regarding the composition of the selection boards, the defendants erroneously lump together several of the plaintiffs' claims regarding the composition of selection boards. Pls.' Opp'n to Defs.' Mot. for Partial Dismissal at 16. The plaintiffs acknowledge that the court previously rejected the claim made by the Adair andCFGC plaintiffs that "having more than one chaplain on a board was unconstitutional." Id. Nevertheless, they assert that the court has not addressed their claims that the voting procedures of board members, as applied, result in unconstitutional acts of religious discrimination. Id. at 17 (arguing that the voting procedures mixed with the small size of the selection board result in an abuse of power "for personal, vindictive and ideological purposes"). Nor, they argue, has the court addressed their claims that the 106*106 defendants "used a denominational hierarchy in [the] selection [of] chaplain board members." Id. at 19.

As discussed earlier, the court determined in its January 10, 2002 ruling that the plaintiffs' facial challenges to the policies of the selection boards were insufficient to state a claim under Rule 12(b)(6). See supra Part III.B.3; Adair, Mem. Op. (Jan. 10, 2002), 183 F.Supp.2d at 59-61. For the reasons asserted in that ruling and reiterated above, the court dismissed the facial challenges to the defendants' selection board policies. See supra Part III. B.3. To the extent that the plaintiffs again seek to reassert a facial challenge to the defendants' policies that allow chaplains to sit on selection boards, the court dismisses it for the reasons already pronounced. See Adair, Mem. Op. (Jan. 10, 2002), 183 F.Supp.2d at 59-61.
The court agrees with the plaintiffs, however, that the defendants have cast too wide of a net when discussing the types of claims that are properly considered dismissed under the court's January 10, 2002 ruling. As the court clarified above, its January 10, 2002 ruling did not dismiss the plaintiffs' as applied claims. See supra Part III.A.3. Therefore, insofar as the plaintiffs allege in their complaints that the selection boards' voting procedures and the "denominational hierarchy" employed in selecting board members have, in fact, resulted in religious discrimination, see Pls.' Opp'n to Defs.' Partial Mot. to Dismiss at 17-19, the court declines to dismiss these claims at this time. Because the legal viability of such as applied claims was not raised in the government's motion for partial dismissal, the court reserves any judgment as to that issue. Accordingly, the court grants in part and denies in part the defendants' motion to dismiss the plaintiffs' claims regarding the composition of the promotion and selective early retirement boards.
5. The Court Denies the Defendants' Motion to Dismiss, Insofar as They Seek Dismissal Based on Mootness Grounds
a. Legal Standard for Mootness
Under Rule 12(b)(1), a party may move to dismiss a case on grounds of mootness.Comm. in Solidarity with People of El Salvador v. Sessions, 929 F.2d 742, 744 (D.C.Cir.1991); Super Sack Mfg. Corp. v. Chase Packaging Corp., 57 F.3d 1054, 1060 (Fed.Cir.1995); Am. Historical Ass'n v. Peterson, 876 F.Supp. 1300, 1308 (D.D.C.1995). Article III's case-or-controversy requirement prohibits courts from issuing advisory opinions or decisions based on hypothetical facts or abstract issues. Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). "The doctrine of mootness is a logical corollary of the case or controversy requirement[.]"Better Gov't Ass'n v. Dep't of State, 780 F.2d 86, 90 (D.C.Cir.1986). In cases where challenged conduct ceases and "there is no reasonable

expectation that the wrong will be repeated, ... it becomes impossible for the court to grant any effectual relief whatever to the prevailing party, and any opinion as to the legality of the challenged action would be advisory." City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Accordingly, a court may not rule on the merits of a case in which the claim for relief is moot.
Courts must evaluate mootness "through all stages" of the litigation in order to ensure that a live controversy remains. 21st Century Telesis Joint Venture v. Fed. Commc'ns Comm'n, 318 F.3d 192, 198 (D.C.Cir.2003) (citing Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. 107*107 (TOC), Inc., 528 U.S. 167, 191, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) and Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). As a result, "[e]ven where litigation poses a live controversy when filed, the [mootness] doctrine requires a federal court to refrain from deciding it if `events have so transpired that the decision will neither presently affect the parties' rights nor have a morethan-speculative chance of affecting them in the future.'" Id. (quoting Clarke v. United States, 915 F.2d 699, 701 (D.C.Cir.1990)).
A case is moot when "the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." City of Erie, 529 U.S. at 287, 120 S.Ct. 1382 (internal quotations omitted). An intervening event may render a claim moot if (1) there is no reasonable expectation that the conduct will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violations. Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C.Cir.2002);Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C.Cir. 1992). A case is not moot, however, so long as any single claim for relief remains viable, as the remaining live issues satisfy the case-or-controversy requirement. Tucson Med. Ctr. v. Sullivan,947 F.2d 971, 978 (D.C.Cir.1991) (internal quotations and citations omitted). The burden of establishing mootness rests on the party raising the issue, and it is a heavy burden. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Motor & Equip. Mfrs. Ass'n v. Nichols, 142 F.3d 449, 458-59 (D.C.Cir. 1998).
b. Because the Court Can Provide an Effective Remedy, the Plaintiffs' Claims Challenging the Composition of the Promotion Boards Are Not Moot
The defendants contend that the plaintiffs' claims challenging the faith group category composition of Chaplain Corps promotion boards should be dismissed as moot because these claims are premised on policies that no longer exist. Defs.' Mot. for Partial Dismissal

at 16. The defendants maintain that adjudicating these claims "would give plaintiffs no prospective relief." Id. at 18.
The plaintiffs respond that dismissal based on mootness is inappropriate because the court can still provide a remedy through a declaration and injunction, notwithstanding the defendants' change in its policies. Pls.' Opp'n to Defs.' Mot. for Partial Dismissal at 26-27. More specifically, the plaintiffs argue that the court can provide "[a] declaration [stating that] the challenged procedures are unconstitutional," thereby "void[ing] Plaintiffs' initial boards, [and] requiring Defendants to convene new selection boards." Id. at 27. Similarly, they contend that the court can issue "an injunction" that would "prohibit[] the challenged procedures and practices on future selection boards [and] protect[] active duty Plaintiffs... from further prejudice and unequal treatment." Id.
A case is not moot if a court can provide an effective remedy. United States v. Chrysler Corp., 158 F.3d 1350, 1353 (D.C.Cir.1998) (noting that "`even the availability of a partial remedy' is `sufficient to prevent a case from being moot'" (quoting Church of Scientology v. United States, 506 U.S. 9, 13, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992))). As the plaintiffs point out, the court can provide a remedy, namely, a declaration that the Navy Chaplain 108*108 Corps has violated the Constitution by applying their procedures in a discriminatory fashion, as well as an injunction requiring the Navy to reevaluate the personnel decisions made by the selection boards with respect to the plaintiffs and to prevent such alleged future religious discrimination. Thus, the requested relief would alleviate the alleged past injury that the plaintiffs have suffered, even if, as the defendants argue, these challenged policies no longer exist. Because "[t]he availability of this possible remedy is sufficient to prevent this case from being moot," Church of Scientology v. United States, 506 U.S. 9, 13, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992), the court denies the defendants' motion to dismiss insofar as it is based on mootness grounds.
6. The Court Denies the Defendants' Motion to Dismiss, Insofar as They Argue that the Plaintiffs Lack Standing to Bring Certain Claims
a. Legal Standard for Standing
Article III of the Constitution limits the jurisdiction of federal courts to cases or controversies. U.S. CONST. art. III, § 2, cl. 1. These prerequisites reflect the "common understanding of what it takes to make a justiciable case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Consequently, "a showing of standing `is an essential and unchanging' predicate to any exercise of [a court's] jurisdiction." Fla.

Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Simply stated, "Article III standing must be resolved as [a] threshold matter." Raytheon Co. v. Ashborn Agencies, Ltd., 372 F.3d 451, 453 (D.C.Cir.2004) (citing Steel Co., 523 U.S. at 96-102, 118 S.Ct. 1003).
As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing standing. Lujan, 504 U.S. at 561, 112 S.Ct. 2130; Steel Co., 523 U.S. at 104, 118 S.Ct. 1003; City of Waukesha v. Envtl. Prot. Agency, 320 F.3d 228, 233 (D.C.Cir.2003) (per curiam). The extent of the plaintiff's burden varies according to the procedural posture of the case. Sierra Club v. Envtl. Prot. Agency, 292 F.3d 895, 898-99 (D.C.Cir.2002). At the pleading stage, general factual allegations of injury resulting from the defendants' conduct will suffice. Id.
To demonstrate standing, plaintiffs must satisfy a three-pronged test. Sierra Club,292 F.3d at 898 (citing Lujan, 504 U.S. at 560, 112 S.Ct. 2130). First, plaintiffs must have suffered an injury in fact, defined as a harm that is concrete and actual or imminent, not conjectural or hypothetical. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 243 (D.C.Cir.1999) (citing Steel Co., 523 U.S. at 103, 118 S.Ct. 1003). Second, the injury must be fairly traceable to the governmental conduct alleged. Id. Finally, it must be likely that the requested relief will redress the alleged injury. Id. This Circuit has made clear that no standing exists if the plaintiffs' allegations are "purely `speculative[, which is] the ultimate label for injuries too implausible to support standing.'" Tozzi v. Dep't of Health & Human Servs., 271 F.3d 301, 307 (D.C.Cir.2001) (quoting Advanced Mgmt. Tech., Inc. v. Fed. Aviation Admin., 211 F.3d 633, 637 (D.C.Cir.2000)). Nor does standing exist where the court "would have to accept a number of very speculative inferences and assumptions in any endeavor to connect [the] alleged injury with [the challenged conduct]." Winpisinger v. Watson,628 F.2d 133, 139 (D.C.Cir.1980). Finally, if a plaintiff is an association, it may demonstrate standing as long as "its members would have standing 109*109 to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires members' participation in the lawsuit." Consumer Fed'n of Am. v. Fed. Commc'ns Comm'n, 348 F.3d 1009, 1011 (D.C.Cir.2003) (quoting Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).
b. The Plaintiffs Have Standing to Bring Their Accession Claims
By way of background, the plaintiffs allege in their complaints that the Navy's past and present chaplain accession policies violate the First and Fifth Amendment.CFGC, 4th Am.

Compl. ¶¶ 48; Adair, 4th Am. Compl. ¶ 32; Gibson Am. Compl. ¶ 41; at 132. With respect to the Navy's past policy, the plaintiffs claim that the defendants implemented a quota, or a "Thirds Policy," that resulted in accession rates for non-liturgical candidates that were significantly lower than other faith group clusters. Pls.' Opp'n to Defs.' Mot. for Partial Dismissal at 28. The plaintiffs further argue that although the defendants have now abandoned the Thirds Policy, the defendants' current policy continues to violate the First and Fifth Amendments because they "refuse to expend the efforts necessary to ensure [that] non-liturgical congregations ... have appropriate chaplains." Id. at 31. The plaintiffs therefore ask that the court require the defendants to "(1) identify the religious needs [of the Navy], (2) determine what it takes to meet them in the context of the Navy's operational requirements, and (3) allocate resources to obtain the needed chaplains." Id. at 32.
The defendants argue in their motion to dismiss that "there is no conceivable way in which any of [the plaintiffs] can demonstrate standing to challenge the Navy's alleged accession policies, past or present." Defs.' Mot. for Partial Dismissal at 19. More specifically, the defendants contend that because "each Plaintiff successfully accessed into the Chaplain Corps," the plaintiffs cannot show that "the Navy's past or present accession policies caused them any injury in fact," a requirement of standing. Id. at 19-20. The plaintiffs disagree, arguing, inter alia, that the defendants' prejudicial accession policies directly harm them because these policies limited their ability as non-liturgical chaplains to meet their communities' religious needs and increased their workload. Pls.' Opp'n to Defs.' Mot. for Partial Dismissal at 30. In response, the defendants assert that "there is no evidence that any chaplain's work load has been increased by an alleged disparity in accessions, much less any evidence that could be quantified to any degree sufficient to satisfy the injury in fact element of the standing test." Defs.' Reply in Supp. of Defs.' Mot. for Partial Dismissal at 12.
The Circuit has explained that "the burden of production a plaintiff must bear in order to show it has standing to invoke the jurisdiction of the district court varies with the procedural context of the case." Sierra Club, 292 F.3d at 898-99. In resolving a motion to dismiss, "general factual allegations of injury resulting from the defendant's conduct may suffice to establish standing."[10] Id. (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130). Thus, in 110*110 order to survive the defendants' motion for partial dismissal, the plaintiffs do not need to demonstrate that the non-liturgical chaplains suffered an increased workload or limitations in meeting their religious communities' free exercise needs as a result of the defendants' accession policies. Instead, at this stage, the court inquires as to whether the plaintiffs' pleaded factual content, accepted as true, allows the court to draw the reasonable inference that the plaintiff suffered such injuries in fact. See Iqbal, 129 S.Ct. at 1949. The court determines that it does.

The plaintiffs have proffered an affidavit from Captain James Poe, who testified concerning his experience overseeing the Navy's worship activity in Naples, Italy and Rota, Spain. Gibson, Am. Compl., Ex. 22. According to Captain Poe, it is "not always true" that non-liturgical groups "can effectively minister to and meet the free exercise needs" of their faith community. Id. ¶ 8. He cites his experiences in Naples and Rota to support his contention that the Navy has failed "to provide the necessary chaplain resources at those overseas, religiously isolated bases to match the free exercise needs of its non-liturgical personnel." Id. ¶ 29. Thus, the plaintiffs submit that the needs of Navy personnel of nonliturgical faiths were not being met. See generally id.The plaintiffs further contend that the Navy's ability to meet the needs of the non-liturgical faith communities were due to the accession policies disfavoring non-liturgical chaplains. Pls.' Opp'n to Defs.' Mot. for Partial Dismissal at 30.
As it must, the court accepts as true the plaintiffs' pleaded factual content, including Captain Poe's affidavit. Iqbal, 129 S.Ct. at 1949. These pleadings allow the court to reasonably infer that the Navy's alleged accession policies resulted in limitations of the plaintiffs' abilities to meet the free exercise needs of their respective religious communities and to their increased workload. Because the plaintiffs' pleaded factual content, accepted as true, allows the court to draw the reasonable inference that the plaintiff suffered an injury in fact to support standing, see id. at 1949, the court denies the defendants' motion to dismiss the plaintiffs' accession claims for lack of standing.[11]
c. The Plaintiffs Have Standing to Bring Their Claims Challenging the Defendants' Retention Policies and Practices
The plaintiffs allege that the defendants' retention policies and practices are discriminatory because they purposefully "keep Non-liturgical chaplains from continuing on active duty beyond their initial three-year tour, assuring that they would not be considered for promotion and minimizing their future influence." Adair, 4th Am. Compl. ¶ 22; CFGC, 4th Am. Compl. ¶ 49; Gibson, Am. Compl. ¶ 39. The plaintiffs111*111 also challenge the Navy's practice of retaining Roman Catholic chaplains "past their statutory separation age." Adair, 4th Am. Compl. ¶ 37; CFGC, 4th Am. Compl. ¶ 69; Gibson, Am. Compl. ¶ 54.
The defendants contend that the plaintiffs lack standing to challenge the Navy's alleged retention policies and practices, and they therefore urge the court to dismiss these claims. Defs.' Mot. for Partial Dismissal at 22. In other words, the defendants maintain that the plaintiffs cannot demonstrate that they have been injured as a result of either the individual decisions of the Navy's retention boards or the Navy's alleged practice to retain Roman

Catholic chaplains beyond the statutory retirement age for Navy officers.[12] Id. at 25. The plaintiffs retort that the defendants' retention policies and practices have injured them by, inter alia, "increas[ing] the work required of non-liturgical chaplains to meet their duties, as illustrated by [Captain] Poe." Pls.' Opp'n to Defs.' Mot. for Partial Dismissal at 35.
As discussed above, at this procedural juncture, the court need only reasonably infer that the plaintiffs incurred an injury as a result of the defendants' retention policies.Sierra Club, 292 F.3d at 898-99. For the reasons already stated, see supra Part III.C.6.b, the court agrees that the plaintiffs have sufficiently pleaded factual content which, if presumed true, allows the court to reasonably infer that the plaintiffs were injured as a result of the defendants' retention policies. Specifically, the plaintiffs have alleged that they are underrepresented in the Navy Chaplaincy Corps as a result of the defendants' policies and practices favoring the retention of certain denominations and disfavoring the retention of non-liturgical chaplains, and therefore have had to work harder and with fewer resources to meet their objectives. Pls.' Opp'n to Defs.' Mot. for Partial Dismissal at 35. Because the plaintiffs' pleaded factual content, accepted as true, allows the court to draw the reasonable inference that the plaintiffs suffered an injury in fact to support standing, see Iqbal, 129 S.Ct. at 1949, the court denies the defendants' motion to dismiss the plaintiffs' retention claims.
d. The Plaintiffs Have Standing to Challenge the Navy's Alleged "Culture of Prejudice" and Its Disciplinary System
The plaintiffs allege that "[t]he Navy has established two systems of discipline and administration, one for liturgical traditions, and one for Non-liturgical traditions." Adair,4th Compl. ¶ 94; Gibson, Am. Comp. ¶ 120; see also CFGC, 4th Am. Compl. ¶ 8. The defendants contend that the plaintiffs lack standing to challenge the Navy's disciplinary system because the plaintiffs have not proffered "that they face any injury from any disciplinary policies or practices." Defs.' Mot. for Partial Dismissal at 35-36. More specifically, the defendants assert that "none of the Plaintiffs alleges that he or she has ever been subject to court-martial or any other investigation 112*112 or punishment under the Uniform Code of Military Justice." Id. at 35.
The plaintiffs counter that the Navy's disciplinary system "consists of more than courts martial, [as] it includes investigations and administrative measures." Pls.' Opp'n to Defs.' Mot. for Partial Dismissal at 44. The plaintiffs argue that the Navy uses its "administrative/discipline system" to favor chaplains of certain religions over others. Id. at 45. Specifically, the plaintiffs allege that at least seven of the plaintiffs (Plaintiffs Klappert, Thompson, Mitchell, Harkness, Scott, Steward and Torralva) have been the victims of

improper investigations and have received disparate treatment with respect to punishments and rewards when compared to chaplains of other denominations. Id. at 44-45.
In reply, the defendants maintain that six of these seven plaintiffs have now left the Navy and are thus "no longer subject to the Navy's disciplinary system and lack standing to challenge it." Defs.' Reply in Supp. of Defs.' Mot. for Partial Dismissal at 23. As for the seventh plaintiff, Plaintiff Klappert, the defendants argue that he does not actually claim that he was the victim of an improper investigation, but rather that he initiated an investigation into a retaliatory action by the defendants.[13] Id. at 23-24.
As noted, to establish standing, the plaintiffs must show they suffered a concrete and actual injury that is traceable to the defendants' conduct and that is likely to be redressed by the relief that they are requesting. Byrd, 174 F.3d at 243. Here, the plaintiffs allege that they were actually injured as a result of the defendants' disparate treatment of non-liturgical chaplains when they were targeted for improper investigations and administrative punishments. Adair, 4th Compl. ¶ 94; Gibson, Am. Comp. ¶ 120; see also CFGC, 4th Am. Compl. ¶ 8. In the event that the plaintiffs are able to demonstrate such prejudice in the defendants' disciplinary system, the plaintiffs ask that the court require the defendants to "implement[ the] systematic changes and procedures necessary" to enjoin the disparate treatment of non-liturgical chaplains in disciplinary matters. Adair, 4th Compl. at 81, ¶ 12. If this were the only request for relief, then perhaps the defendants' arguments for dismissal would merit further consideration, given that the plaintiffs have now left the Navy and would thus not have anything to gain from observing a change in the Navy's disciplinary system. See Bois v. Marsh, 801 F.2d 462, 466 (D.C.Cir.1986) (explaining that a plaintiff who does not have any further dealings with the Army and does not expect to have a future relationship with the Army stands to gain nothing from the reform of the "military procedures to which she is no longer subject").
The plaintiffs, however, also request that the court "[i]ssue the necessary orders voiding all adverse personnel actions flowing" from the defendants' alleged discriminatory policies against the non-liturgical chaplains. Id. at 84, ¶ 8. The court may, for instance, issue an order 113*113 requiring the Navy to review the plaintiffs' respective disciplinary files and find an appropriate remedy for the harm done by the alleged discriminatory policies and practices. In such circumstances, the plaintiffs' requested relief would also likely redress their alleged injury, notwithstanding that the plaintiffs are no longer subject to the Navy's disciplinary system. Because the plaintiffs have pleaded an actual injury that is traceable to the defendants' actions and may be redressed by the requested relief, the court concludes that the plaintiffs have standing at this juncture to pursue their claims concerning the disciplinary system.See Byrd, 174 F.3d at 243.

7. The Court Dismisses the Gibson Plaintiffs' "Taxand-Spend" Claims
The Gibson plaintiffs allege that the "funding of the [Navy Chaplaincy Corps]'s illegal policies, practices and actions exceeds Congress' [taxation and spending] authority" under the Constitution." Gibson Pls.' Compl. at 129. According to the defendants, the court previously dismissed an identical claim advanced by the Adair and CFGCplaintiffs. Defs.' Mot. for Partial Dismissal at 31. The plaintiffs respond by underscoring that they have standing to bring such a claim, but fail to address the defendants' contention regarding the previous dismissal of identical claims. See Pls.' Opp'n to Defs.' Mot. for Partial Dismissal at 38-39.
In its January 10, 2002 memorandum opinion, this court observed that the Adair andCFGC plaintiffs had asserted claims that "the defendants ha[d] violated Congress's tax and spending powers because Congress funds the [Navy] Chaplain Corps, whose policies violate the Establishment Clause." Adair, Mem. Op. (Jan. 10, 2002),183 F.Supp.2d at 67 n. 29. The court proceeded to dismiss those claims, holding that they were merely another way for the plaintiffs to attempt to establish standing to raise their Establishment Clause challenges. Id.
In 2007, the Gibson plaintiffs filed their complaint before this court, asserting that "Congress's use of tax funds ... to fund the Navy's unconstitutional and prejudicial policies and actions, and its establishment or endorsement of preferred religious traditions in the [Navy's Chaplain Corps] violates the Establishment Clause's specific prohibition on such funding or support." Gibson, Am. Compl. ¶ 176. The Gibsonplaintiffs' claim is strikingly similar to those previously dismissed claims raised by theAdair and CFGC plaintiffs, and the plaintiffs have not identified any substantial differences between the Gibson plaintiffs' assertions and the Adair and CFGCclaims. See generally Pls.' Opp'n to Defs.' Mot. for Partial Dismissal. At its core, theGibson plaintiffs' claim regarding Congress's taxing and spending authority is an attack on the constitutionality of the Navy Chaplain Corps policies. Additionally, the plaintiffs presumably assert such a claim in order to advance an alternative form of standing, i.e. taxpayer standing. The Circuit, however, has observed that the plaintiffs' challenges to the Navy Chaplaincy Corp policies are insufficient to convey taxpayer standing. In re Navy Chaplaincy, 534 F.3d 756, 762 (D.C.Cir.2008) (concluding that the plaintiffs' contention that the Navy Chaplain Corps is being operated in contravention of the law "directly undermines any claim to taxpayer standing"). As such, the court incorporates its prior reasoning and dismisses the Gibson plaintiff's claim that challenges Congress's taxation and spending authority. See Adair, Mem. Op. (Jan. 10, 2002), 183 F.Supp.2d at 67 n. 29.

114*114 8. The Court Dismisses the Gibson Plaintiffs' Facial Claims Regarding the Use of Chaplains to Rate Other Chaplains
The Gibson plaintiffs claim in count 7 of their complaint that the "use of chaplains to rate other chaplains, except in unavoidable circumstances, violates the First and Fifth Amendments." Gibson Am. Compl. ¶ 101. The defendants argue that the court should reject this claim because "[t]he court has already rejected the identical claim" brought by the Adair and CFGC plaintiffs. Defs.' Mot. for Partial Dismissal at 33. The plaintiffs appear to concede that the Gibson plaintiffs' claims are identical to those already dismissed by the court, but the plaintiffs argue that the ruling should be reconsidered. Pls.' Opp'n to Defs.' Mot. for Partial Dismissal at 40. Indeed, the plaintiffs note that they have filed a motion under Rule 54(b) requesting such reconsideration. Id.
In its January 10, 2002 ruling, the court determined that the plaintiffs had failed to state a claim in alleging that the defendants' policies of having chaplains rate other chaplains facially violated the Establishment Clause. Adair, Mem. Op. (Jan. 10, 2002), 183 F.Supp.2d at 60. As discussed above, the court declines to alter or amend its January 10, 2002 memorandum opinion with respect to this issue. See supra Part III.A.3.b. To the extent that the Gibson plaintiffs seek to assert a similar facial challenge to the Navy's practice of having chaplains rate other chaplains, the court dismisses this claim under Rule 12(b)(6) for those reasons already asserted in its January 10, 2002 memorandum opinion. See Adair, Mem. Op. (Jan. 10, 2002),183 F.Supp.2d at 60.
9. The Court Denies Without Prejudice the Defendants' Motion to Dismiss the Gibson Plaintiffs' 10 U.S.C. § 613a Claims
By way of background, under 10 U.S.C. § 613a(b)(3), the discussions and deliberations of a selection board "may not be used for any purpose in any action, suit, or judicial ... proceeding without the consent of the Secretary of the military department concerned." 10 U.S.C. § 613a(b)(3). In count 15 of their amended complaint, the Gibson plaintiffs claim that 10 U.S.C. § 613a is unconstitutional as applied to their claims and denies them "the ability to challenge the legality of actions within the board proceeding." Gibson, Am. Compl. ¶¶ 159, 164. They further assert that if the "vows of secrecy" dictated by § 613a were removed, the "plaintiffs [would] be able to establish [that] denominational considerations have been the determining factor in chaplain promotion decisions, contrary to the Establishment and Due Process Clauses and [the Religious Freedom Restoration Act]." Id. ¶ 161.

In their motion, the defendants argue that the court should dismiss count 15 of theGibson plaintiffs' complaint because "the Court has already rejected a virtually identical challenge to § 613a's predecessor statute, 10 U.S.C. § 618(f)."[14] Defs.' Reply to Pls.' Opp'n to Defs.' Mot. for Partial Dismissal at 18. According to the plaintiffs, § 613a allows Congress to bar "effective judicial review of government decisions" and thereby raises "serious 115*115 constitutional questions." Pls.' Opp'n to Defs.' Mot. for Partial Dismissal at 38. The plaintiffs contend that this court's prior decision concerning § 618(f) is irrelevant because it "addressed a statute no longer in existence" and explain that they are challenging § 613a in order "to preserve their appeal right." Id.
Prior to October 2006, § 618(f) barred the disclosure of promotion-board proceedings to any non-board member. See 10 U.S.C. § 618(f) (2005); Pub.L. No. 109-364, 120 Stat. 2185 (repealing § 618(f)). Although the Adair and CFGC plaintiffs challenged the constitutionality of § 618(f) as applied to their cases,[15] this court ultimately determined that § 618(f) did not bar judicial review of the plaintiffs' claims and was "not unconstitutional as applied to the plaintiffs' claims." Adair, Mem. Op. (Sep. 11, 2006), 451 F.Supp.2d 210, 221 (noting that "[t]hough § 618(f) may have a collateral effect on a plaintiff's ability to access evidence relevant to the litigation of constitutional claims ..., the court recognizes no constitutional right of access to discovery in this circumstance").
In October 2006, Congress repealed § 618(f) and simultaneously enacted § 613a.See National Defense Authorization Act for Fiscal Year 2007, Pub.L. No. 109-364, § 547, 120 Stat. 2216 (2006). Although the two provisions are very similar,[16] there is a critical difference between the provisions of § 618(f) and § 613a. While § 618(f) required only that proceedings of promotion selection boards not be disclosed, § 613a mandates nondisclosure for proceedings of both selection boards and selection boards that are convened to recommend officers for continuation on active duty or early retirement. Compare 10 U.S.C. § 611(a) with 10 U.S.C. § 611(a)(c).
At first blush, the court's prior reasoning concerning the constitutionality of § 618(f) would appear to also apply in determining the constitutionality of § 613a. The parties, however, have failed to provide any briefing to the court on the issues regarding the differences between § 618(f) and § 613a. See generally Defs.' Mot for Partial Dismissal; Pls.' Opp'n to Defs.' Mot for Partial Dismissal. As such, the parties have also neglected to describe how, if at all, these differences impact whether the court's prior analysis of § 618(f) applies in determining the constitutionality of § 613a. With such limited information, the court declines to dismiss count 15 by hastily applying its prior analysis. Accordingly, the court denies without prejudice the defendants' motion to dismiss count 15 of the Gibson plaintiffs' complaint.

10. The Court Grants the Defendants' Motion to Dismiss the Plaintiffs' Hostile Work Environment Claims
The defendants argue that the court should dismiss the plaintiffs' claims insofar as they allege that the Navy has a "culture of prejudice," because the plaintiffs have 116*116not alleged "that [they] were in fact the victim[s] of a discriminatory action by the Navy." Defs.' Mot. for Partial Dismissal at 35. Instead, the defendants maintain that "what Plaintiffs are alleging is the speculative possibility that the Navy's alleged `culture' will lead to acts of discrimination in the future." Id.
The plaintiffs contend that they have properly alleged a hostile work environment claim, which is an "actionable wrong [that] has injured Plaintiffs." Pls.' Opp'n to Defs.' Mot. for Partial Dismissal at 44. The defendants reply by urging the court to reject any belated attempt by the plaintiff to "recast their `culture of prejudice' claims" as a hostile work environment claim under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq. Defs.' Reply in Supp. of Defs.' Mot. for Partial Dismissal at 21.
The plaintiffs allege that "[t]he Navy has created a culture and system which has allowed and allows certain senior chaplains to exercise their religious bias and destroy plaintiffs' and other Non-liturgical chaplains' careers with no accountability."Adair, 4th Am. Compl. ¶ 97. They expressly challenge the Navy Chaplain Corps' "systematic hostility and culture of prejudice," id. ¶ 98, which "chill[s the] plaintiffs' free exercise and free speech rights," id. ¶ 137; see also CFGC 4th Am. Compl. ¶¶ 154, 171. The plaintiffs do not appear, however, to allege hostile work environment claims under Title VII, instead focusing on the defendants' alleged promotion of a culture of prejudice in advancing their constitutional claims. See Adair, 4th Am. Compl. ¶ 137; CFGC, 4th Am. Compl. ¶ 171 (expressing that the "culture of hostility" chills the plaintiffs' First Amendment rights). Even if the arguments advanced by the plaintiffs can be construed as a hostile work environment claim, it is "well-established" that "a plaintiff cannot amend his [c]omplaint in an opposition to a defendant's motion for summary judgment." Jo v. District of Columbia, 582 F.Supp.2d 51, 64 (D.D.C.2008). The court, therefore, will not consider a potential hostile work environment claim where the plaintiff has not clearly asserted such a claim and instead attempts to raise it for the first time in opposing the defendants' motion for summary judgment. See Worthey v. Snow, 2006 WL 1722331, at *4 (D.D.C. June 20, 2006) (declining to consider a hostile work environment claim asserted for the first time in the plaintiff's opposition to a summary judgment motion).

In any event, the plaintiffs do not plead factual allegations from which a reasonable jury could determine that a hostile work environment existed. Assuming the veracity of the plaintiff's allegations, which the court must do, the defendants actions did not subject the plaintiffs to conduct that was "sufficiently severe or pervasive to alter the conditions of [their] employment and create an abusive working environment" under Title VII. Singletary v. District of Columbia, 351 F.3d 519, 526 (D.C.Cir.2003). Courts have held that no hostile work environment existed in situations where the alleged instances of discriminatory behavior were far greater than the plaintiffs claim to have experienced in this case. See, e.g., Bryant v. Brownlee, 265 F.Supp.2d 52, 64 (D.D.C.2003) (determine that no hostile work environment existed even though a coworker referred to the plaintiff as "nigger" and had stated that white men were first and black women were "at the bottom"). Accordingly, because the plaintiffs have not alleged facts from which a reasonable juror could find that a hostile work environment under Title VII existed, the court dismisses any such claims. See Mahoney v. Donovan, 824 F.Supp.2d 49, 62 (D.D.C.2011) (dismissing 117*117 hostile work environment claim because the plaintiff had not pleaded facts from which a reasonable juror could determine that the defendant had created a hostile work environment.).
IV. CONCLUSION
For the foregoing reasons, the court denies the plaintiffs' motion to alter or amend its January 10, 2002 ruling or, in the alternative, certify judgment, and denies the Gibsonplaintiffs' similar motion as to the court's August 17, 2000 ruling. Further, the court grants in part and denies in part the defendants' motion for partial dismissal. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 21st day of March, 2012.
[1] For a detailed account of the factual allegations, see Adair v. England, 183 F.Supp.2d 31, 34-38, 40-45 (D.D.C.2002).
[2] The court by no means intends here to reiterate all of the plaintiffs' claims. This memorandum opinion involves three consolidated cases, each with a complaint over 85 pages lon g and involving multiple claims. See generally Adair v. England et al., Civ. No. 00-566 ("Adair"), 4th Am. Compl.;Chaplaincy of Full Gospel Churches v. England, Civ. No. 99-2945, 4th Am. Compl.; Gib son v. Dep't of Navy, Civ. No. 06-1696 ("Gibson"), Am. Compl.
[3] The term "non-liturgical" denotes Christian denominations or faith groups that do not have a formal liturgy or order in their worship service. Adair, Mem Op. (Jan. 10, 2002), 183 F.Supp.2d at 37.
[4] The term "accessions" refers to individuals that the Chaplain Corps brings into the Navy, either active duty or reserve, as commissioned officers during the current fiscal year. Adair v. England, 217 F.Supp.2d 7, 9 n. 5 (D.D.C. 2002).
[5] According to the plaintiffs' expert,

[t]here is an institutional preference among denominations ... and this preference priority forms the basis for populating the selection boards; that pattern of preference in turn control s the mix of denominations which are selected to, promoted within, or involuntarily retired from the U.S. Navy Chaplain Corps. The favored denominations receive disproportionate benefit; the disfavored ones are denied unbiased and equitable consideration f or admission, advancement, and tenure.
Id. at 20.
[6] The court's August 17, 2000 opinion was not issued bythe undersigned, but rather by the member of this court to whom this case was originallyassigned. See generally CFGC, Mem. Op. (Aug. 17, 2000).
[7] Plaintiff CFGC suggests that certification is appropriate on the issue of whether it has direct standing to sue the defendants because the defendants have challenged Plai ntiff CFGC's representational standing to challenge the defendants' accession system. See CFGC's Mot. to Alter or Amend at 32 ("Defendants have consistentlychallenged the individual plaintiffs' abilityto challenge defendants' accession practices claiming that they have not been injured by the practice."). Id. at 42. The court, however, has never ruled that Plaintiff CFGC lacks representational standing to pursue its claims. In the event that the court were to make such a ruling in the future, Plaintiff CFGC may file a renewed motion for Rule 54(b) certification.
[8] A "special board" is defined as "a board that the Secretary ... convenes under any authority to consider whether to recommend a person for ... retirement." 10 U.S.C. § 1558(b)(1). A "special selection board" is a board convened to consider an officer's eligibilityfor a promotion, see id. § 628, or to review the decision bya selection board not to recommend an officer (or a former officer) for promotion, see id. § 14502. A special selection board is separate and distinct from both a "selection board;" id. § 1558(b)(2)(B)(iii) (excluding a special selection board from the definition of a selection board), and a "special board," id. § 1558(b)(1)(C) (excluding a special selection board from the definition of a special board).
[9] In the alternative, the defendants argue that the plaintiffs lack standing to bring their challenges to the composition of the selection board. Defs.' Mot. for Partial Dismissal at 13-14. Indeed, the plaintiffs devote the majority of their opposition to refuting the defendants' standing arguments. See Pls.' Opp'n at 11-16. In reviewing the defendants' arguments regarding standing, however, it appears that the defendants are onlychallenging the plaintiffs' standing to launch a facial attack on the composition of the selection board. See Defs.' Mot. for Partial Dismissal at 13 (criticizing the plaintiffs' arguments that the "Chaplain Corps policyof assigning chaplains from a variety of faith group categories to serve on promotion and selective earlyretirement boards `represents something of a per seconstitutional violation'"). Because such facial challenges bythe plaintiffs have already been dismissed for the reasons asserted above, see supra Part III.A.3, the court need not reach the defendants' standing a rguments.
[10] "On a motion for summaryjudgment, however, the plaintiff can no longer rest on such mere allegations , but must set forth by affidavit or other evidence specific facts, which for purposes of the summaryjudgment motion will be taken to be true." Sierra Club v. Envt'l Prot. Agency, 292 F.3d 895, 898-99 (D.C.Cir.2002) (internal quotation marks and alterations omitted).
[11] The defendants also argue that the plaintiffs' accession claims should be dismissed as moot. Defs.' Mot. for Partial Dismissal at 16-18. The defendants specificallycontend that the Circuit has alreadydetermined in Larsen v. U.S. Navy, 525 F.3d 1, 4-5 (D.C.Cir.2008), that the plaintiffs' claims challenging the accession policies were mooted by "the Navy's 2001 adoption of a policy of accessing all best-qualified chaplain candidates irrespective of faith group or faith group category." Defs.' Reply in Supp. of Defs.' Mot. for Partial Dismissal at 9. Since the defendants' submission, however, the Circuit vacated its Larsen decision and instructed this court to entertain new briefings on the subject of mootness in light of new evidence. Larsen v. Dep't of the Navy, Civ. Action No. 07-5196 (D.C.Cir. Nov. 10, 2010). Accordingly, the court denies without prejudice the defendants' motion to dismiss the plaintiffs' accession claims based on mootness grounds, but grants leave to the defendants to refile their motion, if ap propriate, after the court has ruled on the remanded Larsenmatter.
[12] The defendants acknowledge that three of the plaintiffs mayhave been injured by the defendants' retention policies. Defs.' Mot. for Partial Dismissal at 23-23. Insofar, however, as the plaintiffs' claims are based on these three plaintiffs' injuries, the defendants argue that the claims should be d ismissed because theywere brought outside of the statute of limitations period. Id. As discussed above, the court determines that the plaintiffs have sustained an injury separate and apart from the injury conceded by the defendants, namely, that the chapl ains were required to work harder and with fewer resources to accomplish their objectives due to the defendants' policies. Because this injuryis

sufficient to support standing, the court takes no position does not reach the defendants' statute of limitati ons arguments for the other injuries sustained bythese three plaintiffs.
[13] In the alternative, the defendants argue that the plaintiffs' claims regarding the disciplinarysystem should be dismissed for failure to state a claim. Defs.' Reply in Supp. of Defs.' Mot. for Partial Dismissal at 24 -25. Because, however, the defendants put forth this argument for the first time in their reply, the court does not consider it. See McBride v. Merrell Dow & Pharms., 800 F.2d 1208, 1211 (D.C.Cir.1986) ("Considering an argument advanced for the first time in a reply brief, then, is not only unfair to an appellee, but also entails the risk of an improvident or illadvised opinion on the legal issues tendered." (internal citation omitted)).
[14] The defendants also contend that count 15 "does not represent a substantive cause of action on which Plaintiffs could obtain judgment," but rather is "a position in a discovery dispute." Defs.' Mot. for Partial Dismissal at 31. Because this court has, however, previously held that the plaintiffs' challenges to 10 U.S.C. § 613a "constitute more than a mere discoverydispute," the court does not address these arguments. In re Navy Chaplaincy, Mem. Op. (Jan. 30, 2009) at 7.
[15] Prior to their constitutional challenge, the Adair and CFGC plaintiffs challenged the applicabilityof § 618(f) to their cases, but ultimatelylost that battle in the Circuit. See generally In re Gordon R. England, 375 F.3d 1169 (D.C.Cir.2004).
[16] Section 618(f) stated that "proceedings of a selection board convened under section 611(a) of this title may not be disclosed to any person not a member of the board." 10 U.S.C. § 618(f). Similarly, § 613a 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." Id. § 613a; see also McGrady v. Mab us, 635 F.Supp.2d 6, 12 (D.D.C.2009) (noting the substantial similarities between the two statutes and holding that any differences "do not substantivelyalter the parties' rights").

 
 In re Navy Chaplaincy, 287 F.R.D. 100 (2012)

287 F.R.D. 100 United States District Court,
District of Columbia.
In re NAVY CHAPLAINCY.
No. 07–269 (GK). | Nov. 29, 2012.
Synopsis Background: Current and former non-liturgical Navy chaplains and ecclesiastical endorsing agency for military chaplains brought actions alleging that Department of Navy (DON) discriminated against members of non-liturgical religions when making decisions for promotion, accession, retention, and separation of Navy chaplains. Actions were consolidated. After dismissal of some claims, 183 F.Supp.2d 31, and 850 F.Supp.2d 86, plaintiffs moved to take depositions and preserve testimony.
Holdings: The District Court, Gladys Kessler, J., held that:
[1] plaintiffs were not entitled to take depositions for the purpose of preserving testimony of two Navy captains;
[2] plaintiffs were not entitled to take depositions for the purpose of preserving testimony of a general;
[3] plaintiffs were not entitled to take deposition for the purpose of preserving testimony of a captain who had already submitted a declaration; and
[4] plaintiffs were not entitled to take deposition for the purpose of preserving testimony of a commander.
Motion granted in part, and denied in part.
Attorneys and Law Firms
*100 Arthur A. Schulcz, Sr., The Law Office of Arthur A. Schulcz, Sr., Vienna, VA, for Chaplaincy of Full Gospel Churches, Robert Duane Purser Lieutenant Commander, Robert H. Adair, Michael Belt, Michael Belt, Furniss Harkness, Michael Lavelle, Michael Lavelle, Timothy D. Nall, Thomas Rush, James M. Weibling, John Witherspoon, Michael *101 A. Wright, William C. Blair, William C. Blair, Rafael J. Quiles, Lyle Swanson, David

S. Wilder, Martha Carson, Mark R. Johnston, Klon K. Kitchen, Jr., Denise Y. Merritt, Daniel E. Roysden, Mary Helen Spalding, David L. Gibson, Richard L. Arnold, Ray A. Bailey, Ray A. Bailey, Associated Gospel Churches, All Gibson Plaintiffs, All Adair Plaintiffs, All Chaplain/Full Gospel Plaintiffs.
Christopher R. Hall, Eric B. Beckenhauer, Matthew J.B. Lawrence, U.S. Department of Justice, Washington, DC, for United States Navy, Secretary of the Navy, Hansford T. Johnson Secretary of the U.S. Navy, Gerald L. Howeing Vice Admiral, Chief of Naval Personnel, Louis V. Iasiello Rear Admiral, Chief of Chaplains, Deputy Chief of Chaplains, Byron Holderby, Jr. Rear Admiral, Chief of Chaplains.
Opinion

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.
Plaintiffs have filed a Motion to Take Depositions to Preserve Testimony. The Government has filed a Response, which is essentially a partial Opposition, and Plaintiffs have filed a lengthy Reply. Upon consideration of the parties’ briefs, the applicable Federal Rules of Civil Procedure, and the entire record in this case, the Court concludes that the Motion shall be granted in part and denied in part.
Plaintiffs have moved for an Order allowing them to take depositions of 10 individuals, five of whom are named Plaintiffs and five of whom are fact witnesses, for the purpose of preserving their evidence. In response, Defendants have indicated that the Government does not oppose Plaintiffs’ request as to the five named Plaintiffs, subject to two conditions: that the depositions be taken in the District of Columbia, since that is the Plaintiffs’ forum of choice, and in order to minimize the cost of such depositions to the taxpayers;1 and that the parties follow the same procedure they have used in the past, namely, that the Government be allowed to take discovery depositions first, so that it would be in a position to prepare for an effective cross-examination. Those two requests will be granted.

1

Plaintiffs have not indicated that such conditions would

pose any undue hardship.

1

In re Navy Chaplaincy, 287 F.R.D. 100 (2012)
The Government does, however, oppose Plaintiffs request to take depositions of the five fact witnesses they have identified. This consolidated litigation has been ongoing since 1999. Parties have engaged in extensive discovery during that period of time. Plaintiffs have taken more than 30 depositions in the consolidated litigation, including multiple depositions of several high ranking Chaplain Corps Officers. In addition, Defendants have produced more than 9,000 pages of documents and have responded to 25 interrogatories and 91 requests for admission. Initially, the cases were assigned to Judge Ricardo M. Urbina. In July 2009, Judge Urbina entered an informal stay of discovery pending resolution of multiple dispositive cross-motions. Upon Judge Urbina’s retirement in early 2012, the litigation was reassigned to this Court, which formally extended Judge Urbina’s stay of discovery. Case Management Order # 1 [Dkt. No. 124].
Even though Plaintiffs concede that “no specific Rule covers this case,” they suggest that Fed.R.Civ.P. 27 (“Rule 27”), which allows testimony to be taken before litigation is initiated, provides useful criteria for evaluating Plaintiffs’ request. Plaintiffs summarize their position by concluding that the relevant factors under both Rule 27 and Fed.R.Crim.P. 15 are “the materiality of the testimony and the necessity for preserving testimony in order to ensure the interests of justice,” citing United States v. Kelley, 36 F.3d 1118, 1124–25 (D.C.Cir.1994), accord Penn. Mut. Life Insurance Co. v. United States, 68 F.3d 1371, 1374 (D.C.Cir.1995).
The Government has two reasons for opposing Plaintiffs’ request to take depositions to preserve the testimony of the five fact witnesses. First, Plaintiffs have failed to meet their burden of demonstrating a valid need to preserve such testimony, and, second, Plaintiffs’ request is basically an effort to expand the scope of the depositions they seek beyond merely preservation of testimony and into full blown fact discovery. In addition, the Government points out that since 1999, Plaintiffs have had ample opportunity *102 to take the depositions of the potential fact witnesses, have elected not to, and have given no reason for their failure to do so.
The crux of the dispute between the parties has come down to whether Rule 27, which specifically covers preservation of testimony before an action is filed, also applies to preservation of testimony sought under Fed.R.Civ.P. 26 (“Rule 26”), which pertains to the scope and limits on discovery after litigation has been filed. Plaintiffs argue that Rule 27 applies only to pre-filing litigation and, therefore, gives parties all the broad rights they have to discovery under Rule 26. The Government, on the other hand, agreeing with Plaintiffs’ suggestion

that the factors set forth in Rule 27 provide a useful guide in assessing the pending Motion, argues that under Rule 27, a party must show (1) the likely future unavailability of the proposed deponent and (2) “a need for [the proposed deponents’] testimony that cannot easily be accessed by other potential witnesses.” Penn. Mut. Life Insurance Co., 68 F.3d at 1374–75.
[1] While the parties have created an interesting academic dispute over the scope of Rule 27, and its relationship to Rule 26, they have basically lost sight of the woods for the trees. When Case Management Order # 1 was issued, discovery was stayed. Therefore, parties are not in a discovery mode at this time. For that reason, Rule 26 has no applicability at this time. Moreover, depositions authorized for the purpose of preservation of testimony are not to be used as a substitute for Rule 26 discovery. See Petition of Kunimoto, 1996 WL 622094, *3 (D.D.C. Oct. 16, 1996). See also Penn. Mut. Life Insurance, 68 F.3d at 1376.
[2] [3] As to the five individual fact witnesses, at least two of them, Captain Jack Stafford and Captain James W. Anderson, Plaintiffs have no information revealing their location, activities, or even whether they are still alive. As to General Charles C. Krulak, Plaintiffs have not shown “a need for [his] testimony that cannot easily be accessed by other potential witnesses.” Penn. Mut. Life Insurance, 68 F.3d at 1374–75. As Plaintiffs describe the information they hope to elicit from General Krulak, it is clear that they are seeking merely his personal views about wanting to establish a separate United States Marine Corps Chaplain Corps, rather than hard facts. Plaintiffs also seek testimony from him about the events at Quantico that led to the alleged CHC retaliation against three Plaintiffs. But Plaintiffs already have substantial information from other witnesses about that incident and there is nothing to show that failure to depose General Krulak would be “a failure or delay of justice.” Rule 27(a)(3). Finally, as noted earlier, Plaintiffs have had many years to take this deposition and have offered no excuse as to why they have not deposed him.
[4] As to Captain Larry Ellis, he has already submitted a declaration that was filed as an attachment to the very first complaint filed in this litigation on November 5, 1999. Again, Plaintiffs offer no explanation for their failure to depose him during the many years since 1999.
[5] As to Commander John Lyle, Plaintiffs candidly admit that they want his testimony to use as corroborating opinion testimony in support of Plaintiffs’ general allegation about the state of the Chaplain Corps. There is no showing of his likely unavailability in the future to
2

In re Navy Chaplaincy, 287 F.R.D. 100 (2012)
justify taking his deposition in order to preserve testimony. Plaintiffs’ extremely vague statements that another Plaintiff made indicating that Lyle was hospitalized because of “a serious immune system problem” which “may be such that is capable of recurring” hardly constitute an adequate, or even believable, justification for his unavailability.
Parties must remember that discovery has been stayed

only, and no cut-off date for its completion has been set. If and when discovery is reopened, Plaintiffs will have their full opportunity to proceed under Rule 26.
For the reasons states, Plaintiffs’ Motion is granted in part and denied in part.

3

 
 928 F.Supp.2d 26

928 F.Supp.2d 26 United States District Court,
District of Columbia.
In re: NAVY CHAPLAINCY.
Case No. 1:07–mc–269 (GK). | Feb. 28, 2013.
Synopsis Background: Current and former non-liturgical Protestant chaplains in the United States Navy, endorsing agency for non-liturgical military chaplains, and fellowship of non-denominational, evangelical churches brought action against Department of the Navy and several officials, alleging that defendants discriminated against chaplains on basis of their religion by establishing, promoting, and maintaining “illegal religious quotas” and religious preferences in their personnel decision-making. Plaintiffs moved for preliminary injunction. The District Court, Ricardo M. Urbina, J., 841 F.Supp.2d 336, denied plaintiffs’ motion and the Court of Appeals, District of Columbia, Tatel, Circuit Judge, 697 F.3d 1171, 403 U.S.App.D.C. 1, reversed and remanded.
Holdings: On remand, the District Court, Gladys Kessler, J., held that:
[1] law of the case did not establish that plaintiffs did not have burden to demonstrate discriminatory intent, and
[2] statistics allegedly showing denominational preferences in promotions of chaplains did not demonstrate pattern of discrimination motivated by discriminatory intent.
Motion denied.

Amendments, the plaintiff must plead and prove that the defendant acted with discriminatory purpose. U.S.C.A. Const.Amends. 1, 5.

[2]

Courts

Jurisdiction, dismissal, nonsuit, and summary

judgment, rulings relating to

In action by current and former non-liturgical

Protestant chaplains in the United States Navy,

endorsing agency for non-liturgical military

chaplains,

and

fellowship

of

non-denominational, evangelical churches,

district court’s statement in earlier decision

denying motion for partial summary judgment

that Department of the Navy and officials were

“somewhat mistaken” in asserting that plaintiffs

had burden to prove defendants instituted

policies that actually discriminated did not

establish law of the case that plaintiffs did not

have burden to demonstrate discriminatory

intent in their claims alleging personnel

decisions violated First Amendment

establishment clause and equal protection

component of Fifth Amendment due process

clause; court stated that, although policies that

explicitly discriminated on basis of religion

were subject to strict scrutiny, such scrutiny was

not to be applied to policies that did not

explicitly discriminate on basis of religion

unless plaintiffs demonstrated that some or all of

the Navy’s policies and practices suggested a

denominational preference and court had ruled

earlier on motion to dismiss that plaintiffs had

alleged intentional discrimination. U.S.C.A.

Const.Amends. 1, 5.

West Headnotes (5)
[1] Constitutional Law First Amendment in General
Constitutional Law Intentional or purposeful action requirement
Where a plaintiff specifically claim that defendant engaged in invidious discrimination in contravention of the First and Fifth

[3]

Courts

Interim relief, rulings relating to

Federal Civil Procedure

Reconsideration

Interlocutory orders are not subject to law of the case doctrine and may always be reconsidered

928 F.Supp.2d 26

prior to final judgment.

[4]

Injunction

Likelihood of success on merits

If the record presents a number of disputes regarding the inferences that must be drawn from the facts in the record, a court cannot conclude that plaintiff has demonstrated a substantial likelihood of success on the merits, required for a preliminary injunction.

[5] Armed Services Judicial intervention or review
Constitutional Law Armed Services;  Selective Service
Constitutional Law War and national security

Statistics allegedly showing denominational

preferences in promotions of Navy chaplains did

not demonstrate pattern of discrimination

motivated by discriminatory intent, as required

for action by current and former non-liturgical

Protestant chaplains in the United States Navy,

endorsing agency for non-liturgical military

chaplains,

and

fellowship

of

non-denominational, evangelical churches

against Department of the Navy and several

officials, alleging violations of First Amendment

establishment clause and equal protection

component of Fifth Amendment due process

clause; statistics for one position showed 10%

difference between promotion rate of candidates

of same denomination as Chief of Chaplains and

candidates of different denominations. U.S.C.A.

Const.Amends. 1, 5.

Attorneys and Law Firms *27 Arthur A. Schulcz, Sr., The Law Office of Arthur A.

Schulcz, Sr., Vienna, VA, for Plaintiffs.
Christopher R. Hall, U.S. Department of Justice, Eric B. Beckenhauer, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for Defendants.
Matthew J.B. Lawrence, U.S. Department of Justice, Federal Programs Branch, Washington, DC, for Navy Chaplaincy.
Opinion
AMENDED MEMORANDUM OPINION
GLADYS KESSLER, District Judge.
Plaintiffs, current and former non-liturgical Protestant chaplains in the United States Navy (“Navy”), endorsing agencies for non-liturgical Protestant chaplains, and a fellowship of non-denominational Christian *28 evangelical churches, bring this action against Defendants, Department of the Navy and several of its officials. Plaintiffs allege that Defendants discriminated against them on the basis of religion when making personnel decisions in violation of the First Amendment’s Establishment Clause and the equal protection component of the Fifth Amendment’s Due Process Clause, and that Defendants also violated the Establishment Clause by delegating governmental authority over personnel decisions to chaplains who sat on 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. 98], Reply [Dkt. No. 99], and the entire record herein, and for the reasons set forth below, Plaintiffs’ Motion is denied.
I. BACKGROUND
A. Factual Background2 Congress provided for the organization of the Navy Chaplain Corps, “whose members are commissioned Naval officers who possess specialized education, training and experience to meet the spiritual needs of those who serve in the Navy and their families.” Adair v. England, 183 F.Supp.2d 31, 35 (D.D.C.2002) (Adair I ) (internal quotation marks omitted). The Navy divides the Chaplain Corps into four “faith groups”: Catholic, liturgical Protestant, non-liturgical Protestant, and Special Worship.

928 F.Supp.2d 26

In re Navy Chaplaincy, 697 F.3d 1171, 1173 (D.C.Cir.2012).
The term “liturgical Protestant” refers to “those Christian Protestant denominations whose services include a set liturgy or order of worship.” Adair I, 183 F.Supp.2d at 36. In contrast, the term “non-liturgical Protestant” refers to “Christian 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.
In order to become a Navy chaplain, “an individual must have an ‘ecclesiastical endorsement’ from a faith group endorsing agency certifying that the individual is professionally qualified to represent that faith group within the Chaplain Corps.” In re Navy Chaplaincy, 697 F.3d at 1173. Chaplaincy of Full Gospel Churches and Associated Gospel Churches are two such endorsing agencies and are among the Plaintiffs in this case. Id.
The Navy uses the same personnel system for all of its officers, including chaplains. In re England, 375 F.3d 1169, 1172 (D.C.Cir.2004). That system “seeks to manage officers’ careers to provide the Navy with the best qualified personnel through three critical personnel decisions: (1) promotion; (2) continuation on active duty; and (3) selective early retirement.” Id. Chaplains, like all Navy officers, “are recommended for promotion by ‘selection boards’ convened to consider whether particular candidates should be promoted to a higher rank.” In re Navy Chaplaincy, 697 F.3d at 1173. Chaplain selection boards are currently composed of seven members: two chaplains and five other officers. Id. (citing SECNAVINST 1401.3A, Suppl. ¶ 1.c.(1)(f)).
*29 Plaintiffs allege that Defendants “discriminated against [ ] [them] on the basis of their religion, by establishing, promoting and maintaining illegal religious quotas and religious preferences in their personnel decision making.” In re Navy Chaplaincy, 841 F.Supp.2d 336, 341 (D.D.C.2012). More specifically, Plaintiffs allege that “the Navy’s selection board process results in denominational favoritism that advantages Catholic and liturgical chaplains while disadvantaging non–liturgical chaplains” and that “this alleged systematic bias has left non-liturgical chaplains underrepresented in the Navy.” Id. 340.
Plaintiffs claim that, under the selection board process, “[c]haplain promotion board members ‘vote the record’ by depressing one of five buttons in a ‘sleeve’ 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, ranging from 0 to 100 in 25 degree increments.” Pls.’ Mot. for Prelim. Inj. at 4 (internal 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, under this promotion system, which has no accountability, their “[s]tatistical analysis [ ] shows that in every [Navy Chaplain Corps] personnel management category that can be measured by data, the Navy has a preference for Catholics first, Liturgical Protestants second, with nonliturgical or Special Worship [faith group clusters] alternating third and fourth.” Id. at 4–5.
Plaintiffs now move for a preliminary injunction, asking the Court to enjoin the Navy from “(1) the use of the Chief of Chaplains (the ‘Chief’) or his Deputy as chaplain selection board president; (2) the use of secret votes thereon with no accountability; and (3) placing chaplains on chaplain selection boards without effective guarantees [that] the power to distribute government benefits will be used solely for secular, neutral and non-ideological purposes.” Id. at 1. Plaintiffs request that the preliminary injunction remain in force “until the Court can evaluate on their merits the partial summary judgment (PSJ) motions pending before this Court.”3 Id. at 2.
B. Procedural Background This dispute involves three cases, Chaplaincy of Full Gospel Churches v. England, Civ. No. 99–2945, Adair v. England, Civ. No. 00–566, and Gibson v. Dep’t of Navy, Civ. No. 06–1696, the earliest of which was filed in 1999, and each with a complaint of over 85 pages, containing multiple constitutional claims. On June 18, 2007, the District Court concluded that the three cases raised “substantially similar constitutional challenges to the Navy Chaplaincy program” 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 *30 filed their Opposition to Plaintiffs’ Motion, and on September 12, 2011, Plaintiffs’ filed their Reply in support of their Motion.

928 F.Supp.2d 26

Plaintiffs’ motion was denied by the District Court on January 30, 2012. See In re Navy Chaplaincy, 841 F.Supp.2d 336. Plaintiffs appealed that judgment, and on November 2, 2012, the Court of 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 III standing, reasoning that their asserted future injury was too speculative because it rested on the assumption that chaplains sitting on future selection boards would ‘necessarily favor candidates affiliated with [their] own denomination,’ an assumption that the court found implausible given that Naval officers ‘are presumed to undertake their official duties in good faith.’ ” In re Navy Chaplaincy, 697 F.3d at 1175 (quoting In re 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 injunction factors6 weighed against granting injunctive relief.” In re Navy Chaplaincy, 697 F.3d at 1175. More specifically, “[a]lthough the [District] [C]ourt presumed the existence of 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 the public interest weighed against granting preliminary injunctive relief.” Id. (citations omitted).
2. Court of Appeals Proceedings
On appeal, the Court of Appeals reversed the District Court’s conclusion that Plaintiffs lacked Article III standing, reasoning that “[P]laintiffs’ allegation that the challenged policies will likely result in discrimination is sufficiently non-speculative to support standing.” Id. at 1177. The Court then “review[ed] the district court’s ultimate decision to deny injunctive relief, as well as its weighting of the preliminary injunction factors [.]” Id. at 1178. The Court concluded that “the district court correctly assumed that plaintiffs have demonstrated irreparable harm” and agreed with the District Court’s conclusion that the balance of the equities and the public interest weighed against granting the injunction. Id. at 1179 (stating that “in assessing the balance of the equities and the public interest, we must ‘give great deference to the professional judgment of military authorities’

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, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)).
Noting that the remaining issue was likelihood of success on the merits, the Court of Appeals saw “no error in the district court’s conclusion that plaintiffs are unlikely to succeed on the merits” of their delegation theory.7 Id. at 1179.
*31 However, the Court of Appeals noted that “[w]e have a 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 that “their statistical analysis provides strong evidence of a pattern of discrimination.” Id. at 1180. Defendants challenge Plaintiffs’ statistical evidence and offer their own expert analysis, which they claim demonstrates that no 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]ll it had to say about the issue was this: ‘the plaintiffs have submitted no evidence from which the court could assume that the future promotion boards will follow any putative pattern of alleged discrimination.’ ” Id. (quoting In re Navy Chaplaincy, 841 F.Supp.2d at 346). The Court then concluded 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 discrimination.” Id. Accordingly, the Court of Appeals vacated the District Court’s denial of Plaintiffs’ Motion and remanded for further proceedings consistent with its opinion.
3. Reassignment of the Case
On May 31, 2012, Judge Ricardo Urbina, who had handled this dispute since 2001, retired and thereafter, the Calendar Committee reassigned it to the undersigned Judge. Because of the complexity of the procedural and constitutional issues raised, which the parties have now been litigating for well over a decade, 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, at least five of which were dispositive, and issued a Case Management Order (July 25, 2012)8 [Dkt.

928 F.Supp.2d 26

No. 124, later amended] setting numerous deadlines in order to move the case towards resolution.
4. Record Considered in Resolving Plaintiffs’ Motion
On November 2, 2012, the Court of Appeals issued its opinion on Plaintiffs’ Motion, reversing and remanding for further proceedings. On November 19, 2012, this Court ordered the parties to submit a joint statement identifying those briefs and exhibits they believed constituted the record to be considered on remand in resolving Plaintiffs’ Motion. Order (Nov. 19, 2012) [Dkt. No. 143]. On December 21, 2012, the parties filed their joint statement identifying, among other filings, briefings and exhibits on four dispositive motions, which they agreed constituted the relevant record. Joint Statement (Dec. 12, 2012) [Dkt. No. 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, *32 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008), and “may only be awarded upon a clear showing that the plaintiff is entitled to such relief,” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C.Cir.2011) (internal quotation marks omitted) (quoting Winter, 555 U.S. at 22, 129 S.Ct. 365); see Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (noting that “the movant, by a clear showing, carries the burden of persuasion”).
A party seeking a preliminary injunction 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, 555 U.S. at 20, 129 S.Ct. 365.
In the past, these four factors “have typically been evaluated on a ‘sliding scale[,]’ ” such that “[i]f the movant makes an unusually strong showing on one of the factors, then [she] does not necessarily have to make as strong a showing on another factor.” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92 (D.C.Cir.2009). However, the continued viability of the sliding scale approach is uncertain “as the Supreme Court and the D.C. Circuit have strongly suggested, without holding, that a likelihood of success on the merits is an independent, free-standing requirement for a preliminary injunction.” Stand Up for California! v. U.S. Dep’t of the Interior, 919 F.Supp.2d 51, 61, Nos. 12–2039, 12–2071,

2013 WL 324035, at *6 (D.D.C. Jan. 29, 2013); Sherley, 644 F.3d at 393 (“[W]e read Winter at least to suggest if not to hold that a likelihood of success is an independent, freestanding requirement for a preliminary injunction ... [but] [w]e need not wade into this circuit split today.”) (internal quotation marks omitted).
Nor need this Court resolve this unsettled issue because a preliminary injunction is not appropriate here, even under the less demanding “sliding scale” framework. See Stand Up for California!, 919 F.Supp.2d at 62, 2013 WL 324035, at *6 (“If the plaintiffs cannot meet the less demanding ‘sliding scale’ standard, then a fortiori, they cannot satisfy the more stringent standard alluded to by the Supreme Court and the Court of Appeals.”).
III. ANALYSIS Plaintiffs’ claims rest on at least two distinct theories, i.e., their delegation and denominational preference theories. Because the Court of Appeals affirmed the District Court’s rejection of Plaintiffs’ delegation theory, this Court need only consider whether Plaintiffs are entitled to injunctive relief under their denominational preference theory.
A. Likelihood of Success on the Merits According to Plaintiffs, the expert testimony they have submitted “suggests, if not establishes, [that] the challenged practices result in clear denominational preferences in the award of government benefits, advancing some denominations and inhibiting others to the detriment of Plaintiffs[.]” Pls.’ Mot. for Prelim. Inj. at 17. Plaintiffs further contend that “[t]he challenged practices are not narrowly tailored to achieve a compelling purpose,” and therefore “fail all Establishment Clause tests and result in unequal treatment for all chaplains.” Id.
Defendants respond that liability for discrimination based upon religion cannot “be predicated solely on statistical evidence of disparate impact in favor of or against certain denominations[,]” Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. at 19, because “proof of intent is a prerequisite to a finding *33 of unconstitutional discrimination upon the basis of religion [,]” id. at 27. Defendants further contend that “[t]here is no empirical evidence that would suggest denominational favoritism or discrimination correlated to the denominational affiliation of chaplain board members.” Id. at 19–20. In support of their argument, Defendants put forward evidence from their own expert witness, “[who] analyzed Plaintiffs’ claims and found no disparate impact” but did find “serious flaws in

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[Plaintiffs’ expert’s] analyses.” Id.
The Court of Appeals directed this Court to resolve these competing claims and to determine whether Plaintiffs are likely to succeed on the merits of their denominational preference theory. In re Navy Chaplaincy, 697 F.3d at 1180.
1. Proof of Intent Is a Prerequisite to a Finding of Unconstitutional Discrimination on the Basis of
Religion
As a threshold legal issue, the parties dispute whether Plaintiffs must show that the discrimination alleged was intentional.9 Defendants argue that Plaintiffs must prove that the Navy intentionally adopted policies designed to maintain liturgical Christian control over the Chaplain Corps. Defs.’ Mot. for Summ. J. at 10–11; see Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. at 26–31. Plaintiffs respond that Defendants’ “argument that the plaintiffs must show intentional discrimination” is “inconsistent with Establishment Clause precedent” and “contrary to the law of the case.” Pls.’ First Mot. for Summ. J. Reply at 10.
a) Plaintiffs Bear the Burden of Demonstrating Discriminatory Intent
The Court of Appeals recognized that, under their denominational preference theory, Plaintiffs claim that “the Navy discriminates against non-liturgical Protestants on the basis of their religious denomination.” In re Navy Chaplaincy, 697 F.3d at 1179–80 (emphasis added); see Adair First Am. Compl. at 43 (claiming that Defendants “are deliberately motivated by faith group bias”) (emphasis added). Plaintiffs argue that their denominational preference theory raises First Amendment and Fifth Amendment considerations. Pls.’ Mot. for Prelim. Inj. at 17–18; see In re Navy Chaplaincy, 697 F.3d at 1174 (noting that under their denominational preference theory, Plaintiffs “assert that selection boards discriminate against non-liturgical Protestants in making promotion decisions in violation of the Establishment Clause and the Fifth Amendment’s equal protection component”).
[1] Where, as here, Plaintiffs specifically claim that Defendants engaged in “invidious discrimination in contravention of the First and Fifth Amendments, [the Supreme Court’s] decisions make clear that the plaintiff must plead and prove that the defendant acted with

discriminatory purpose.” Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (emphasis added) (citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540–41, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (First Amendment); Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (Fifth *34 Amendment)); see also Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (Fourteenth Amendment) (“[E]ven if a neutral law has disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.”); Brown v. Califano, 627 F.2d 1221, 1234 n. 78 (D.C.Cir.1980) ( “Supreme Court cases have made clear that proof of discriminatory intent, not just disproportionate impact, is necessary to establish an equal protection violation of constitutional dimensions.”).
Under Iqbal, “purposeful discrimination requires more than ‘intent as volition or intent as awareness of consequences ... [i]t instead involves a decision maker’s undertaking a course of action ‘because of, not merely in spite of, [the action’s] adverse effects upon an identifiable group.’ ” 556 U.S. at 676–77, 129 S.Ct. 1937 (emphasis added) (quoting Feeney, 442 U.S. at 279, 99 S.Ct. 2282).
It is true that, in exceptional cases, the disparate impact of a facially neutral policy may be so severe that the clear factual pattern is “unexplainable on grounds other than” purposeful discrimination. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (holding that plaintiffs’ Fourteenth Amendment claim was not viable because plaintiffs failed to carry their burden of proving that the challenged government decision was motivated by discriminatory intent).
Such cases, however, are “rare” and “[a]bsent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, and the Court must look to other evidence.” Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555 (emphasis added). In Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), a local statute altered the shape of a city from a square to a 28–sided figure, which had the effect of removing from the city all but four of its 400 African American voters, and not a single white voter. In Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), a city board of supervisors denied building ordinance waivers to over 200 Chinese applicants, but granted waivers to all but one non-Chinese applicant.
Accordingly, under Supreme Court precedent, Plaintiffs must either (1) point to evidence establishing the existence of a policy or practice that the government

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adopted “because of, not merely in spite of ” its adverse effect on Plaintiffs, Feeney, 442 U.S. at 279, 99 S.Ct. 2282, or (2) demonstrate disparate impact “as stark as that in Gomillion or Yick Wo,” Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555.
b) The Law of the Case Doctrine Does Not Relieve Plaintiffs of Their Burden to Demonstrate Discriminatory Intent
[2] Plaintiffs argue that Defendants’ position on the intent issue is contrary to the law of the case because “[Defendants] first raised this argument in [their] initial 2000 Motion to Dismiss ... which the Court rejected.” Pls.’ Mot. for Prelim. Inj. Reply at 20–23. In support of their law of the case argument, Plaintiffs heavily rely on the District Court’s statement in Adair v. England, 217 F.Supp.2d 7 (D.D.C.2002) (Adair II ) that:
[t]he defendants are somewhat mistaken when they repeatedly state that plaintiffs have the “burden to prove the threshold inquiry: [that] the Chaplain Corps instituted policies ... that actually discriminate against non-liturgicals” before the court can apply strict scrutiny. E.g., Defs.’ Mot. at 60. The plaintiffs’ burden is not that onerous. Rather, under Supreme Court precedent, the plaintiffs in this case bear the initial burden to show that the challenged *35 Navy policies “suggest[ ] ‘a denominational preference....’ ” County of Allegheny [v. American Civil Liberties Union, Greater Pittsburgh Chapter ], 492 U.S. [573] at 608–09[, 109 S.Ct. 3086, 106 L.Ed.2d 472] (1989). Accordingly, if the plaintiff can demonstrate after discovery that some or all of the Navy’s policies and practices suggest a denominational preference, then the court will apply strict scrutiny to those policies and practices for which the plaintiffs have met this initial burden.
Pls.’ Mot. for Prelim. Inj. Reply at 21 (quoting Adair II, 217 F.Supp.2d at 14–15); see Pls.’ Opp’n to Defs.’ Mot. for Summ. J. at 11 (same); Pls.’ Second Mot. for Summ. J. Reply at 9 (same).
Defendants respond that “nothing in the passage ... implies [that] the Court would not require a showing of intentional discrimination (whatever that showing) in order to demonstrate denominational preference” and that “it is clear that the Court understood Plaintiffs’ claim on this front to be one of intentional discrimination.” Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. at 28; see Defs.’ Mot. for Summ. J. at 10–11; Defs.’ Mot. for Summ. J. Reply at 5–6.

Plaintiffs’ contention that “Adair II rejected” the argument that Plaintiffs must show that Defendants acted with discriminatory intent to prevail on their First and Fifth Amendment claims, Pls.’ Opp’n to Defs.’ Mot. for Summ. J. at 11–12, reflects a misreading of the District Court’s prior decisions in this case. In Adair II, the District Court determined 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[.]” Adair II, 217 F.Supp.2d at 14. The District Court deferred “addressing the parties’ dispute about how much of this showing can be comprised of statistical evidence until after discovery[.]” Id. at 15 n. 9.
[3] Defendants are correct that these passages do not imply, no less clearly state, that Plaintiffs need not show intentional discrimination in order to demonstrate denominational preference. And in any case, “[i]nterlocutory orders are not subject to law of the case doctrine and may always be reconsidered prior to final judgment.” Langevine v. Dist. of Columbia, 106 F.3d 1018, 1023 (D.C.Cir.1997); see Spirit of Sage Council v. Kempthorne, 511 F.Supp.2d 31, 38 (D.D.C.2007) (“[T]he law of the case doctrine leaves discretion for the Court to reconsider its decisions prior to final judgment.”).
Moreover, the District Court had already addressed the intent issue in Adair I—a ruling at the early motion to dismiss stage, delivered only months before Adair II. Therefore Plaintiffs were on notice of the District Court’s view of “the importance of the government’s intent in the Establishment Clause calculus[.]” 183 F.Supp.2d at 56 n. 24.
Significantly, the District Court based its Adair I ruling, that Plaintiffs had stated a claim under the Establishment Clause, on the fact that Plaintiffs alleged intentional discrimination. See id. at 56 (“[P]laintiffs have properly asserted that the Navy intentionally hires liturgical protestant chaplains dramatically out of proportion from their overall representation among [Navy] personnel.”) (emphasis added); id. at 56 n. 24 (“[P]laintiffs allege that the Navy has deliberately adopted policies designed to maintain liturgical Christian control over the Chaplain Corps.”) (emphasis added); id. (“[Plaintiffs] have clearly alleged an intentional preference.”) (emphasis added); id. at 57 *36 (“[P]laintiffs clearly offer well-pled factual allegations that the Navy institutes ‘a deliberate, systematic, discriminatory’ retention policy ‘whose purpose was to keep non-liturgical chaplains from continuing on active duty, thus ensuring they would not be considered for promotion and minimizing their future

928 F.Supp.2d 26

influence.’ ”) (emphasis added) (citation omitted).
Thus, far from rejecting the argument that Plaintiffs must prove intent, the law of the case, as clearly articulated in Adair I, recognizes that the central theory of Plaintiffs’ Establishment Clause claim rested on their being subjected to intentional discrimination.
2. Plaintiffs Have Failed to Demonstrate that Defendants Acted with Discriminatory Intent
The Court of Appeals pointed out that “whether plaintiffs are likely to succeed on the merits [of their denominational preference theory]—turns on whether they have made a strong showing of a pattern of past discrimination on the basis of religious denomination and whether that pattern is linked to the policies they challenge.” In re Navy Chaplaincy, 697 F.3d at 1180 (emphasis in original).
It is clear from the precedent discussed above that Plaintiffs bear the burden of demonstrating that Defendants’ alleged “pattern of past discrimination” was motivated by discriminatory intent. Although “[p]roof of discriminatory intent must necessarily usually rely on objective factors ... [t]he inquiry is practical.” Feeney, 442 U.S. at 279 n. 24, 99 S.Ct. 2282. “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555.
The evidentiary basis for Plaintiffs’ denominational preference theory is a series of reports written by their expert, Dr. Harald Leuba. Plaintiffs argue that Dr. Leuba’s statistical analysis shows: “[1] [that] the Chiefs’ denominations benefitted from their position in terms of promotions and accessions ... [2] the Chief’s influence on the Chaplain Corps rank structure ... [3] the Navy’s denominational favoritism ... [4] the Navy’s hierarchy of favorite denominations and their respective promotion rates ... [and] [5] prejudice against Southern Baptists compared to other denominations with Chiefs.” Pls.’ Mot. for Prelim. Inj. Reply at 11 (citations omitted).
[4] Because a preliminary injunction is an “extraordinary and drastic remedy,” Munaf, 553 U.S. at 689, 128 S.Ct. 2207, it is axiomatic that “the one seeking to invoke such stringent relief is obliged to establish a clear and compelling legal right thereto based upon undisputed facts,” Belushi v. Woodward, 598 F.Supp. 36, 37 (D.D.C.1984) (citing Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 311 (2d Cir.1966)).

“If the record presents a number of disputes regarding the inferences that must be drawn from the facts in the record, the court cannot conclude that plaintiff has demonstrated a substantial likelihood of success on the merits.” In re Navy Chaplaincy, 841 F.Supp.2d at 345 (citing Suburban Mortgage Assocs. Inc. v. U.S. Dep’t of Housing & Urban Development, No. 05–00856HHK, 2005 WL 3211563, at *10 (D.D.C. Nov. 14, 2005); SEC v. Falstaff Brewing Corp., No. 77–0894, 1977 WL 1032, at *18 (D.D.C. Aug. 1, 1977)).
[5] Based on the existing record, the Court finds that Plaintiffs have provided no evidence demonstrating that Defendants intentionally discriminated against them. The statistics proffered by Plaintiffs, without more, are not even minimally sufficient to demonstrate the need for the “extraordinary and drastic remedy” of a *37 preliminary injunction. Munaf, 553 U.S. at 689, 128 S.Ct. 2207. Even if we accepted Plaintiffs’ contention that Dr. Leuba’s statistical analysis “suggests, if not establishes, [that] the challenged practices result in clear denominational preferences in the award of government benefits,” Pls.’ Mot. for Prelim. Inj. at 17, Plaintiffs still would not have met their burden of demonstrating probable success on the merits because they made no attempt to show that Defendants’ alleged pattern of past discrimination was motivated by discriminatory intent.
Instead, Plaintiffs repeatedly, and incorrectly, argue that they do not need to show intentional discrimination to demonstrate a likelihood of success on the merits of their denominational preference theory, and that it is sufficient for them to put forward statistics that merely “suggest a denominational preference.” Pls.’ Mot. for Prelim. Inj. Reply at 11–12, 20–23; see Pls.’ Mot. for Prelim. Inj. at 17; Pls.’ Opp’n to Defs.’ Mot. for Summ. J. at 11; Pls.’ Second Mot. for Summ. J. Reply at 9. Plaintiffs misunderstand their burden and have proffered no evidence that Defendants adopted the challenged policies “because of, not merely in spite of” their adverse effect on Plaintiffs. Feeney, 442 U.S. at 279, 99 S.Ct. 2282
Moreover, the disparate impact demonstrated by Plaintiffs’ statistics is not nearly “as stark as that in Gomillion or Yick Wo,” and therefore, there is no justification for inferring that the pattern of their statistics is “unexplainable on grounds other than” purposeful discrimination. Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555. For instance, Dr. Leuba found that when a candidate considered for promotion to Commander happened to be of the same denomination as the Chief of Chaplains, 83.3% of those candidates were selected for promotion. Pls.’ Mot. for Prelim. Inj. at 8. In contrast, Dr. Leuba also found that when a candidate considered for promotion to Commander happened to be of a different denomination as the Chief of Chaplains, only 73.3% of

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those candidates were selected for promotion. Id.
A mere 10% difference between the promotion rate of candidates of the same denomination as the Chief of Chaplains and candidates of a different denomination as the Chief of Chaplains is certainly not “stark” as defined in Arlington Heights. Plaintiffs’ demonstration of a 10% difference in promotion rate is far removed from the pattern in Gomillion, where the challenged local statute had the effect of removing from the city 99% of African American voters and not a single white voter, and the pattern in Yick Wo, where the building ordinance waiver was denied to over 200 Chinese applicants, but granted to all but one non-Chinese applicant.
Accordingly, Plaintiffs’ statistical evidence does not sufficiently show that Plaintiffs are likely to succeed on the merits of their denominational preference claim.
B. Evaluation of the Preliminary Injunction Factors As noted above, the Court of Appeals concluded that “the district court correctly assumed that plaintiffs have demonstrated irreparable harm” and it saw no error in the District Court’s conclusion that the balance of the equities and the public interest weighed against granting the injunction. In re Navy Chaplaincy, 697 F.3d at 1179.
Evaluating the four preliminary injunction factors, this

Court concludes that Plaintiffs are not entitled to injunctive relief. Significantly, Plaintiffs have not demonstrated that they are likely to succeed on the merits of their denominational preference theory because they have not provided any evidence that Defendants intentionally *38 discriminated against them. Moreover, as the District Court previously observed, “[a]lthough plaintiffs’ claims might demonstrate an irreparable injury if ultimately vindicated ... plaintiffs have failed to demonstrate that an injunction would not substantially injure third parties” and “[they] have failed to show that the public interest would be furthered by the court’s intrusion into military personnel decisions.” In re Navy Chaplaincy, 841 F.Supp.2d at 349 (citing Goldman v. Weinberger, 475 U.S. 503, 507–08, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986); Weinberger v. Romero–Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) (noting that courts must “pay particular regard for the public consequences in employing the extraordinary remedy of injunction”)). Accordingly, Plaintiffs are not entitled to injunctive relief.
IV. CONCLUSION Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth in this Memorandum Opinion, Plaintiffs’ Motion for a Preliminary Injunction is denied.

 
 2000 WL 35633644
2000 WL 35633644 (D.D.C.) (Trial Pleading) United States District Court, District of Columbia.
CHAPLAINCY OF FULL GOSPEL CHURCHES, Plaintiff, v.
THE HONORABLE RICHARD J. DANZIG, Secretary of the U.S. Navy; Vice Admiral Daniel T. Oliver, Chief of Naval Personnel, and the United States Navy, Defendants.
No. 1:99CV02945. January 5, 2000.
First Amended Complaint for Declaratory Judgment, Injunction and Equitable Relief to Address Defendants’ Unconstitutional Religious Discrimination, and Violations of First and Fifth Amendment Rights
Respectfully submitted, Arthur A. Schulcz, Sr., D.C. Bar No. 453502, Environmental Counsel, 4910 Massachusetts Ave. N.W., #221, Washington D.C. 20016, 202-686-7602.
Judge: June L. Green.
I. INTRODUCTION
1. This is a federal civil rights action challenging religious, racial and gender discrimination in the U.S. Navy Chaplains Corps. Plaintiff Chaplaincy of Full Gospel Churches (“CFGC”) is the endorsing agency1 for military chaplains of the Christian Protestant Charismatic tradition (hereafter “Charismatic”). CFGC chaplains represent the religious beliefs of more than six and a half million American Charismatic members in over 60,000 churches and fellowships.
2. This lawsuit is not an attack against any particular denomination, tradition or religion, nor against United States Navy (the “Navy”) chaplains. See Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985)( Army Chaplains Corps is constitutional necessity to allow soldiers to exercise their First Amendment “free exercise” rights); 32 C.F.R. § 65.3 (DOD policy is to provide chaplains to allow military to practice their religious free exercise rights) (Note 1 supra). Rather, this is a challenge to a bureaucratic, oligarchic system that has: a) institutionalized religious quotas and unlawful religious discrimination by rewarding some religious traditions or beliefs while unlawfully discriminating against others; b) allowed well intentioned, affirmative action goals to become illegal quotas; and c) condoned hostility to CFGC. These evils undermine the very purpose for which the Navy chaplaincy exists.
3. These quotas, actions and their related policies have resulted in: (a) the de facto establishment of a preferred religious group or tradition within the Navy Chaplain Corps; (b) the accompanying establishment of a religious test for Navy chaplain promotion and career opportunities; (c) the Navy’s unconstitutional discrimination against CFGC Chaplains and other non-preferred religious groups in terms of promotion, retention and career opportunities based on their religious beliefs; (d) reverse discrimination through the establishment of racial and gender quotas for chaplain promotions; (e) the denial of the religious “free exercise” rights of CFGC chaplains and Navy personnel;(f) other practices and actions which unlawfully deny the free speech rights of CFGC chaplains and Navy personnel and/or otherwise discriminate against them and denigrate their service and religious beliefs; and (g) violations of federal statutes and Navy regulations addressing equal opportunity, promotion procedures and chaplain utilization.
4. CFGC brings this suit on behalf of itself and as a representative of its Navy chaplains, CFGC Navy personnel and similar Charismatic or Pentecostal faith groups, and the membership of the more than 60,000 churches and fellowships represented by CFGC (hereafter collectively “CFGC Parties”).
II. JURISDICTION AND VENUE

2000 WL 35633644
5. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331, 1343, and 1346. A declaration of the rights of CFGC, its Navy chaplains and personnel, and its member churches and fellowships, is sought pursuant to 28 U.S.C. §§ 2201 and 2202. Venue is appropriate under 28 U.S.C. § 1391(e) since the defendants are a federal agency and its officials which are headquartered in Washington D.C.
III. PARTIES
A. Plaintiff
6. Plaintiff CFGC is an organization formed to represent the American citizen members of independent, non-denominational charismatic or “full Gospel” churches and fellowships before the Armed Forces Chaplains Board and the military chaplain corps. It represents the Christian charismatic membership of over 60,000 churches and fellowships (1200 independent2 Charismatic churches under CFGC’s covering as well as 58,000 Pentecostal and Charismatic churches under various faith groups and fellowships). These churches have an established membership of over six and a half million. Affidavit of Rev. Jim Ammerman, CFGC Director (“Ammerman”), p. 5, ¶ 21 (Exhibit 1) and 1999 Yearbook of American and Canadian Churches, p. 24 (hereafter “1999 Yearbook”) (describes CFGC)(Exhibit 2). CFGC is located in Dallas, Texas.
7. The Defendant’s unlawful policies and violations of the Constitution, other laws and its own regulations which are challenged herein have injured CFGC, CFGC Chaplains, CFGC’s Navy personnel and the members of CFGC churches as specified in ¶¶ 66 to 69 infra.
8. Each of the CFGC Parties has standing to sue in their own right. The interests which CFGC seeks to protect are germane to its purposes, Ammerman, at 9, ¶ 37 (Exhibit 1), and neither its claims nor the relief requested require the participation of individual CFGC Navy chaplains, Navy members of CFGC’s religious tradition or members of CFGC related churches.
B. The Defendants
9. The Honorable Richard J. Danzig is the Secretary of the United States Navy (the “Secretary”). His office is in the Department of Navy, headquartered in Washington, D.C. He is sued only in his official capacity, as civilian head of the co-defendant organization, the United States Navy (the “Navy”).
10. Vice Admiral Daniel T. Oliver is the Chief of Naval Personnel, an organization within the defendant U.S. Navy, who supervises the promotion policies and personnel procedures challenged herein. Admiral Oliver’s office is in the Navy Department in Washington, D.C.
11. The Navy is a military department of the U.S. Armed Forces created by an Act of Congress. 10 U.S.C. § 5011 et seq. The Navy is organized into several branches or categories, i.e., subordinate groupings of individuals possessing similar qualifications or skills. One of these branches is the Navy Chaplain Corps, 10 U.S.C. § 5142, whose members are commissioned officers possessing specialized education, training and experience to meet the spiritual needs of those who serve in the Navy and their families. The Navy is in Washington, D.C.
IV. DEFINITIONS
12. The Navy divides its Christian personnel into three general categories: Catholic, liturgical Protestant, and non-liturgical Protestant. These are terms commonly used by Navy chaplains and the last two terms have particular significance to this case and its issues. To assist the Court in understanding these terms, the following general definitions are provided: a. Navy chaplains use “liturgical Protestant” to collectively describe those Christian denominations whose religious services are characterized by a set liturgy or order of worship. This primarily includes those Protestant traditions or denominations that began during the Protestant Reformation and who retained an established liturgy in their worship services such as the Lutheran and Episcopal denominations, and the Presbyterian and Methodist3 denominations which later evolved from them.4

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Navy chaplains sometimes refer to these liturgical denominations as “high church”, “main line churches” or, since the common feature of these liturgical denominations is that they all practice infant baptism, “baby baptizers”. As used herein, “liturgical Protestant” shall mean chaplains of the Lutheran, Episcopal, Methodist, and Presbyterian denominations and Orthodox tradition.
b. “Non-liturgical” refers to these Christian Protestant denominations or faith groups without a formal liturgy or order in their worship service. In general, they baptize only adults or children who have reached the age of reason and their clergy do not usually wear vestments or special religious dress during services. Some Navy chaplains refer to these faith groups as “low church”. Examples of low church traditions are: Baptist, Evangelical, Pentecostal and Charismatic.
V. THE FACTUAL BASIS FOR THIS LAWSUIT
A. CFGC’S MISSION AND FUNCTION
13. CGFC was founded to endorse as chaplains those clergy who meet the Department of Defense (“DOD”) requirements for chaplains5 and whose religious beliefs reflect those of CFGC’s member churches. Ammerman at 4, ¶ 14 (Exhibit 1). Its founder and Director, the Rev. Jim Ammerman, is a retired U.S. Army Chaplain (Colonel). Id. at 2, ¶ 8.
14. The Armed Forces Chaplain Board approved CFGC as an endorsing agency for military chaplains in 1984 and CFGC began endorsing chaplains for the Army and Navy in 1985. Id. at 5, ¶ 20.
15. CFGC endorsed chaplains have met all requirements for the Navy Chaplain Corps. See 32 C.F.R. part 65.5 (criteria for chaplains).
16. Once commissioned, CFGC maintains contact with its military chaplains, providing encouragement, spiritual and career guidance, and other appropriate physical or spiritual assistance. Ammerman at 9, ¶ 36.
B. Evidence of Navy Religious Discrimination Against CFGC Chaplains
17. CFGC began endorsing chaplains for the Army and Navy in 1985, and for the Air Force in 1990.
18. All CFGC chaplains are drawn from the same pool of chaplain candidates and must meet the same criteria for commissioning. Yet, CFGC’s dismal Navy chaplain promotion history stands in sharp contrast with the excellent experience of CFGC’s Army and Air Force chaplains. Id. at 6-8, ¶¶ 23-32 ( Exhibit 1).
19. Whereas CFGC chaplains in all other military services are promoted and advance at or above the general rate for chaplains, the promotion rate for CFGC Navy chaplains is far below that of Catholic and liturgical Protestant chaplains and below the over all Navy chaplain promotion rate. Id. a. Army Experience. Beginning in 1985, CFGC has endorsed 85 Army chaplains to active duty. 78 remained past their three year initial tour, and of the 23 eligible for promotion to Major (0-4)6, the Army and Air Force equivalent to Lieutenant Commander (“LCDR”) in the Navy, all 23 were selected for promotion to Major (0-4) with 3 selected below the zone7. At the 0-5 or Lt. Colonel level (corresponding to rank of Commander in the Navy), 3 of 5 eligible CFGC Major (0-4) Army chaplains have been selected and promoted. In 1990, the Army Chief of Chaplains commended the outstanding quality of CFGC chaplains. Id. at 6, ¶ 25-27. A CFGC chaplain received the Army’s Fiscal Year (“FY”) 98 “Chaplain of the Year” Award. In the Army reserves, two CFGC chaplains are Colonels (0-6) and three are Lt. Col. (0-5).
b. Air Force Experience. The Air Force did not accept CFGC endorsed chaplains until 1990, six years after CFGC began endorsing chaplains for the Army and Navy. CFGC now has 10 active duty Air Force chaplains and 14 in the A.F. Reserves. All CFGC eligible 0-3 chaplains have been selected for Major (0-4). CFGC’s Air Force chaplains have not had sufficient time in service or grade to be considered for promotion to Lt. Colonel (0-5).

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c. Navy Experience. In the 15 years since CFGC began endorsing charismatic chaplains for the active Navy (the same length of time as for the Army), a total of 32 CFGC endorsed chaplains entered active Navy service, but only five CFGC chaplains had been selected for Lt. Commander (0-4) until the recent FY 2000 Board when 2 of the 3 CFGC chaplains under consideration were selected (the third candidate had been passed over twice before). To date, no active duty CFGC Navy chaplain has been selected for Commander(O-5).
(1). Four CFGC chaplains considered for promotion to Commander (0-5) had been selected for post-graduate schooling, supposedly based on the strength of their records. The Secretary’s guidance to Navy Chaplain promotion boards states that “post graduate education and specialty skills ... are important to our Navy, and represent a key investment in our future” and should count toward promotion. See 1996 Precept Concerning An FY 97 Selection Board ..., Enclosure 2, p. 2-3. Yet, despite this admonition, not one of those four CFGC Navy chaplains selected for post-graduate studies and considered for promotion to Commander (0-5) has been promoted; two have left the service after non-selection.
(2). In contrast to the active duty Navy, CFGC has endorsed 14 chaplains in the Naval Reserve which has a different promotion system; 2 have been promoted to LCDR (0-4), one of whom was passed over to 0-4 while on active duty, and one has been promoted to Commander (0-5).
(3). The FY 1998 Chaplain Lt. Commander promotion board provides an example of the Navy’s bias toward non-liturgical Pentecostal and Charismatic chaplains. That board considered 7 non-liturgical, Pentecostal chaplains including 1 from CFGC; none was selected for promotion.
C. Other Examples of Navy Anti-CFGC Bias and Discrimination
20. On information and belief, Navy senior chaplains have denied or restricted CFGC chaplains access to Navy facilities for conducting full gospel services or have removed them from preaching or conducting religious services solely because they were CFGC chaplains.
21. CFGC chaplains have also been criticized and berated for preaching and teaching on truths of the Christian faith and the Charismatic tradition.
22. Commenting on those who attended the CFGC full gospel service at one Navy duty station, a senior chaplain told his subordinate CFGC chaplain, “People who believe like that have no place worshiping on base and chaplains from those groups shouldn’t even be in the Navy.”
23. On information and belief, senior Catholic and liturgical Protestant chaplains have placed lower ranking liturgical Protestant or Catholic chaplains in Navy chapel or ministry positions in place of or over CFGC chaplains solely on the basis of the senior chaplain’s hostility to CFGC’s tradition and faith.
24. On information and belief, senior liturgical Protestant chaplains have attempted to force the general Protestant service, and all Protestant services including CFGC services, into a liturgical Protestant mold.
25. On information and belief, liturgical Protestant and Catholic senior chaplains have purposely given CFGC chaplains lower performance ratings than similarly situated subordinate liturgical Protestant and Catholic chaplains solely on the basis of the CFGC chaplains’ religious identification and beliefs and despite evidence of the CFGC chaplain’s superior performance.
26. The fact that the above incidents have taken place and have involved senior Navy chaplains is the logical extension of the Navy Chaplain Corps’ institutionalized bias against CFGC and other non-liturgical Protestant denominations and faith groups.
VI. THE NAVY’S RELIGIOUS DEMOGRAPHICS

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27. The Armed Forces records religious preference data for the individual service members. A 7/8/98 Armed Forces Religious Preference Report (hereafter “AFRPR”) by the Defense Manpower Data Center is attached at Exhibit 3. This data has special relevance to this case because it provides a factual religious demographic background against which to measure CFGC’s allegations and the reasonableness of the Navy’s actions and policies.
28. The AFRPR data shows that the actual Navy membership of the liturgical Protestant denominations at issue here represent less than 10% of all Department of Navy (“DON”) active duty personnel, i.e., both sailors and marines.8 Specifically, those of various Methodist named or affiliated denominations, i.e., those who have Methodist, Wesley or Asbury in their name, represent approximately 3.78% (20,776) of all DON personnel 549,800); Presbyterian related denominations represent 1.05% (5,781); the various Lutheran denominations represent 2.90% (15,937); Episcopal and Reformed Episcopal represent 0.73% (4,039); Orthodox represent 0.1% (256).
29. Adding these totals with Catholics, another major liturgical denomination, who represent 24.09% (132,429) results in a combined total of approximately 32.55%, less than one-third of the Navy’s total personnel.
30. CFGC represents over 6.5 million Americans who belong to over 60,000 Charismatic churches or fellowships. ¶ 6 supra and Exhibit 2. This membership exceeds that of the Presbyterian Church of America (3,610,753), Episcopal (2,364,559) and Evangelical Lutheran (5,185,055) denominations as reported by the 1999 Yearbook at 352 and 353 (Exhibit 4).
31. Although the Navy has a coding system to identify its chaplains by faith group or religious persuasion, the Navy has no code or system to record the religious preference of Charismatic Navy personnel from CFGC churches. Consequently, although CFGC’s membership exceeds many liturgical Protestant denominations, the Navy ignores CFGC’s existence by denying its members identification and making it impossible to determine CFGC’s Navy population.
32. This religious identification information is recorded on the individual’s dog tags and personnel records, providing information in case of injury, sickness or death. It is also used to evaluate the religious needs of sailors and marines. It is impossible for the Navy to meet the religious needs of its CFGC members without determining who CFGC Navy personnel are or how many there are.
VII. THE NAVY CHAPLAIN CORPS
33. From its founding as a nation, the United States has recognized the importance of meeting the spiritual needs of its Armed Forces men and women. To meet this need and provide for the religious “free exercise” rights of soldiers, sailors and airmen, the United States provides military chaplains. See, e.g., Katcoff, 755 F.2d at 225 (providing a brief history of Army chaplains from the Continental Army and Continental Congress in 1775 to present era). Congress has authorized a Navy Chaplain Corps. 10 U.S.C. §§ 5142 (Chaplain Corps) and 6031 (addressing chaplains and divine services).
34. Because American military personnel come from the wide spectrum of religions and religious beliefs that make up America, Armed Forces chaplains, including the Navy, are also drawn from that same spectrum. To avoid governmental entanglement in religious matters and questions, DOD recognizes “endorsing agencies” representing different denominations and faith groups which recommend or “endorse” candidates to the Armed Forces’ chaplain corps, including the Navy. Endorsing agencies must meet the DOD criteria at 32 C.F.R. part 65.5.
35. Once commissioned on active duty, Navy chaplains are subject to the same career opportunities and limitations as other Navy officers. a. Afer initially active duty service for three years, the Navy Chaplain command decides which Navy chaplains may remain on active duty.
b. To continue their Navy careers, chaplains are supposed to meet certain physical and moral fitness standards, perform their chaplain duties satisfactorily, and must be promoted to the next grade when considered.
c. Non-selection for promotion is called a “pass over”. Two pass overs in a row normally terminates a Navy chaplain’s active duty career, just like any other Navy officer. 10 U.S.C. § 632.

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36. Until the late 1980s, the allocation of authorized Navy chaplains between the various faith groups was based on objective criteria, the relative percentage a faith group or denominations’s membership in the total American religious population as reported in sources such as the annual Yearbook of American and Canadian Churches. See Exhibit 4. For example, if there were 100 Navy chaplains authorized and Catholics made up 25% of the American religious population and Baptists made up 20%, the Navy would try to have 25 Catholic and 20 Baptist chaplains.
37. In the late 1960s and 1970’s, the religious demographics began a large, steady and measurable shift away from liturgical Protestant denominations, to non-liturgical Protestant churches, such as CFGC member churches. This trend continues today.
38. Faced with this shrinking liturgical Protestant denominational membership and its implications for Navy chaplain authorizations, in the late 1980s the Navy abandoned its “objective” criteria (linking faith group membership with chaplain authorizations) for an amorphous “needs of the service”, while continuing to emphasize recruiting of liturgical Protestant chaplains despite the shrinking memberships of these denominations.
39. On information and belief, the Navy also adopted “The Thirds” Policy which divides chaplain strength allocations between Catholics who received one third, and liturgical Protestant denominations who received the second third. “Others” make up the last third, including chaplains who are non-liturgical Christian, e.g, CFGC and Pentecostal, and non-Christian, e.g. Jewish, Mormon. In other words, one third of Navy chaplain promotions, retentions on active duty and accessions were allegedly reserved for liturgical Protestant chaplains, whereas this group represented less than one tenth of the religious membership of the Navy. ¶28 supra and AFRPR (Exhibit 3). a. The goal and effect of this Thirds Policy was to maintain liturgical control of the Navy Chaplain Corps.
b. Analysis of promotion board results shows that this policy remains in effect.
40. On information and belief, the goal of the unconstitutional “Thirds Policy” above was further implemented by a deliberate, discriminatory Navy retention policy whose purpose was to keep CFGC and other non-liturgical chaplains from continuing on active duty, thus assuring they would not be considered for promotion and minimizing their future influence. Although liturgical Protestant and Catholic chaplains represent approximately 33% of the Navy religious population, they allegedly received 67% of the allocations and were routinely selected for retention beyond their initial 3 year tour of service in numbers disproportionate to their denominational membership percentage in the Navy.
41. In contrast, CFGC and other non-liturgical chaplains whose faith groups had been increasing, were routinely refused retention. This policy has resulted in the over-representation of liturgical Protestant chaplains and the under-representation of non-liturgical Protestants in the Navy Chaplain program.
42. The decision as to who would stay on or be released from active duty after their initial three years of service was not based on meeting the religious free exercise needs of Navy personnel, but solely on the basis of a chaplains’ religious faith group. This policy clearly discriminates against CGFC chaplains and CFGC Navy personnel and served no legitimate purpose, and was not based on remedying past discrimination nor narrowly tailored.
43. By policy and practice, the Navy Chaplain command has fostered the promotion of a disproportionate number of “high church” Protestant and Catholic Chaplains to the upper ranks, i.e., Captain and Admiral, and key billets in the Navy Chaplain Corps, i.e., those positions with decision making responsibilities. a. In January 1995, the Chaplain of the United States Marine Corps, Ch. (Captain) Larry H. Ellis, wrote a memo to the Navy Chief of Chaplains detailing years of apparent institutional bias against “low-church” Protestant Navy chaplains in regard to assignments to the most prestigious and influential positions (which the Navy calls “billets”) within the Navy Chaplain Corps. Ellis Report (hereafter “Ellis”) (Exhibit 5).
b. In his memo, Captain Ellis states that as of his report (early 1995), only 14 clearly non-liturgical Navy chaplains had filled the 119 top Chaplain Corps billets over the prior 15 year period, i.e., a fill rate for non-liturgicals of 11.8%. Id. at ¶ 5. The fill percentage for liturgical Protestants was greater than 50%, id., far out of proportion to the percentage of the liturgical denominations in the general population or the Navy. See ¶ 28 supra.

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Despite this clear indicator of institutionalized religious discrimination, neither the Navy nor the Navy Chief implemented corrective action.
44. By policy and practice, the Navy Chaplain command has fostered a “high church” Protestant and Catholic monopoly of Chief of Chaplain’s position. For example, three out of the last four and four out of the last seven Chiefs of Chaplains have been Lutheran. A “low church” Protestant officer has held the Navy Chaplain Corp’s highest post, Chief of Chaplains, only once since 1917. List of Chiefs of Chaplains (Exhibit 6).
45. By policy and practice, the Navy discriminates in its chaplain retention policies on the basis of a chaplain’s religious faith group or denomination. a. In spite of Title 10 U.S.C. § 632’s mandate that an officer who is twice passed over for promotion be separated from the Navy, chaplains from favored denominations have been retained by the Navy Chaplain command even though they have been twice passed over for promotion. For example, many Catholic chaplains who have been twice passed over have been routinely provided with additional 3rd, 4th and 5th opportunities for promotion, whereas chaplains of “low-church” Protestant denominations have routinely been separated after their two promotion pass overs.
b. On information and belief, the Navy has used the Selective Early Retirement Board (“SERB”) process to thin down the number of non-liturgical chaplains at the higher ranks, forcing them out of service early in numbers disproportionate to both the actual distribution of faith group chaplains and the Navy’s religious population, i.e., more non-liturgical chaplains get “SERBed” than liturgical chaplains. This insures domination of the Navy Chaplain Command by the liturgical tradition.
c. While “SERBing” non-liturgical chaplains, the Navy has brought liturgical chaplains back on active duty, promoting some after they have returned to active duty.
VIII. THE NAVY CHAPLAIN PROMOTION BOARD SYSTEM
46. Because the opportunity for higher rank decreases the higher one rises in the military, there are always more people qualified than positions available at the higher rank. To decide who is best qualified to fill these limited number of positions, 10 U.S.C.§ 612 provides for selection boards to select officers for promotion. Promotions to the ranks at issue here, LCDR (0-4) and Commander (0-5) result from selection boards.9
47. A promotion board must have at least five board members, one of whom must be from the category being considered. 10 U.S.C. § 612.
48. Selection boards are supposed to evaluate a chaplain’s capacity and potential for further service based on performance as recorded in the chaplain’s fitness or evaluation reports and other appropriate career related data. 10 U.S.C. §§ 616 (best and fully qualified) and 615 (type data to be considered).
49. In contrast to the U.S. Army and U.S. Air Force which use selection boards made up of officers from other branches (both line and staff) to select chaplains for promotion by, the Navy’s chaplain selection boards are dominated by chaplains; only one board member is a non-9 chaplain line officer while the other board members are all Navy chaplains, who themselves represent denominations.
50. In spite of the stated precept that the board may consider only merit and not denominational affiliation, each promotion candidate’s three digit “faith group identifier” code is prominently displayed throughout the promotion board process. Thus, the Navy chaplain promotion board members, who themselves represent particular denominations, are clearly made aware of each chaplain candidate for selection’s denomination or faith group. This procedure has no other purpose than to identify a candidate’s faith group. to the board and thereby create a suspect religious category unrelated to any legitimate Navy objective.
51. The Navy Chief of Chaplains (the “Chief”) is a Rear Admiral and selects the chaplain board members for the Navy chaplain promotion boards.

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52. On information and belief, Catholics and liturgical Protestant s have dominated Navy chaplain promotion boards despite the fact that these traditions represent less than a third of the religious preference of Navy personnel. See ¶ 28 infra. For example, the FY 1998 promotion board for LCDR had two Catholics and one liturgical Protestant chaplain as board members. (Exhibit 7).
53. On information and belief, the Chief of Chaplains has exercised enormous improper power and control over Chaplain promotions. This includes informing one board of his personal list of who he believed constituted “the future of the Navy.” Those chaplains so identified were promoted. CFGC chaplains, not being liturgical, were not on the Chief’s list. This is a per se violation of 10 U.S.C. §§ 615 (types of information to provided to board) and 616(f)(2)(improper influence on board forbidden) as well as the Navy’s promotion board policies.
Evidence of Religious Discrimination In Chaplain Promotions
54. In 1997, responding to an allegation of religious discrimination in Commander (0-5) chaplain promotions, Captain J. N. Stafford, special assistant for Navy minority affairs, submitted a report to the Chief of Naval Personnel on Navy chaplain promotion policies, (Exhibit-8). Capt. Stafford concluded that an objective analysis of the FY 1997 and 1998 chaplain promotion selection boards for Commander indicated “that the board may have systematically applied a denominational quota system.” Id. at 1, ¶ 2. Capt. Stafford also noted that physical fitness standards that would have kept line officers from being promoted were apparently “waived” or ignored for certain liturgical chaplains who were nonetheless promoted. Id. at 2, ¶ 4. The Navy took no action to eliminate its “denominational quota system” for Navy Chaplains.
55. Capt. Stafford’s report documented the fact that chaplain boards have regularly promoted liturgical/high-church Protestant and Catholic Chaplains with uncompetitive or inferior fitness reports and have failed to promote other non-liturgical/low church Chaplains with competitive or superior fitness reports. Stafford Report at 2, ¶ 4 (Exhibit 8). This systemic, illegal Navy bias, selecting less qualified candidates based on liturgical affiliation, has clearly diminished CFGC non-liturgical Protestant chaplains’ opportunity for promotion.
56. On information and belief, by policy and practice, at least one seat on each promotion board is reserved for a Catholic.10
57. Prior to a 1986 religious discrimination case brought by Ch. (then Lt.) Ronald Wilkins, it was not unusual to have two Catholics or more than one chaplain of the same faith group on the same board. In issuing an injunction against Lt. Wilkins’ discharge, the Wilkins Court found “that the [Navy]’s policy of placing two chaplains of the Roman Catholic faith on each and every Chaplain Corps Selection Board” was suspect and probably “a violation of the First Amendment.” Wilkins v. Lehman, Civil No. 85-3031-GT, slip op. at 8, (S.D.Cal. 2/10/86). Pursuant to that decision, for a time the Navy discontinued having two Catholic chaplains on every chaplain promotion board.
58. Although Catholics represent 24.09% of the Navy (Exhibit 3) and despite the Wilkins decision indicating that placing two chaplains of the same denomination on the same chaplain promotion board was constitutionally suspect, the Navy placed two Roman Catholic chaplains on the FY 1998 Chaplain Selection Board for Lt. Commander. (Exhibit 7). Because the Chief selects the board members, this is not an accident or the result of some random process.
Illegal Racial and Gender Classifications and Quotas
59. Navy Chaplain Promotion Board written guidelines and board actions have led to reverse race and gender discrimination by mandating strict racial and gender quotas, undermining or ignoring individual fitness and merit. a. On April 9, 1996, the Secretary of the Navy issued a “Precept Convening an FY 97 Selection Board to Consider Officers in the Competitive Category of Chaplain Corps on the Active Duty List of the Navy for Promotion to the Permanent Grade of Commander” (the “Precept”).
b. Paragraph 3 of the “Supplemental Guidance” enclosed with the Precept establishes special considerations for the evaluation of minority and female officers and promotion board goals for these classes. The minority and female guidelines are in effect strict racial and gender quotas.

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c. It is CFGC’s understanding that this same guidance was provided to all Chaplain Corps promotion boards considering promotions for FY 1998, 1999 and 2000 and was applied to earlier selection boards.
60. By policy and practice, the summary records of minority and female chaplains being considered for promotion are prominently marked with a capital “M” (minority) or “F” (female) as appropriate in the upper right hand corner when these records are displayed before the board for evaluation and selection. This policy has no other purpose than to establish impermissible racial and gender classifications. As such, the Navy’s racial classification policy is subject to strict scrutiny and the gender policy, if not strict scrutiny, to at least intermediate scrutiny, tests the Navy will fail.
61. At every stage in the promotion selection process, the board is presented a racial/gender score card to insure that the Secretary’s minority and gender goals are met. Thus, goals have become quotas and have been applied as such.
62. The Navy has neither established, experienced nor admitted the type of prejudice or discrimination that would legally justify the Navy’s quota system.
63. On information and belief, by policy and practice, the board evaluates non-minority and male chaplain records on a different basis than minority and female chaplains, applying different assumptions and presumptions to each group that have no basis in fact or experience.
68. The Navy’s policy of discrimination in effect makes the members of CFGC churches and CFGC Navy personnel second class citizens, since that policy has established both a religious test for service and support, and endorses an official preferred liturgical Protestant tradition, violating the right of every citizen to be protected from the establishment of a preferred religion and to receive equal treatment under the law.
69. Based on the Navy’s continued and deliberate failure to allow CFGC chaplains (and other non-liturgical chaplains) to continue on active duty, see 40-42 supra, and provide a fair forum for promotion and career development, CFGC has stopped recommending that Charismatic clergy consider the Navy as a viable career or ministry opportunity. Thus, the Navy’s actions inhibit or deny the free exercise needs of CFGC Navy personnel, precluding their right to practice their religion and receive spiritual encouragement and support, by limiting the availability of CFGC chaplains. Ammerman at 9, ¶ 37.
70. CFGC brought the Navy Chaplain Corps’s overt hostility to CFGC chaplains (as manifested by its failure to retain and promote them) to the attention of the Navy Chief of Chaplains (the “Chief”). This has produced no effect or even recognition that there is a problem. Id., ¶ 35. Both the Ellis and Stafford Reports have similarly brought to the Navy’s attention the nature of the religious bias in its Chaplains Corps; no change is evident in policy or practice. On information and belief, earlier reports that the Navy was biased against non-liturgical faith groups have also been ignored.
IX. THE NAVY’S ILLEGAL POLICIES AND ACTIONS
COUNT I
A. The Navy Has Unconstitutionally Established A Preferred Religious Tradition
71. The allegations of paragraphs 1 through 70 above are incorporated herein by reference as though pleaded in full.
72. The Navy has established an unlawful religious quota system that favors chaplains from liturgical denominations or traditions, e.g., Catholic and liturgical Protestant, see 12.a supra, in promotions, retention, and career opportunities while non-liturgical chaplains such as CFGC chaplains are denied these same incidents to and rewards of military service.
73. The effect of this quota system, granting religious preferences to the liturgical Protestant religious tradition, is to impermissibly endorse liturgical Protestant as an “official” preferred religious tradition in violation of the First Amendment’s Establishment Clause. This illegal endorsement or establishment and its challenged policies do not serve a compelling government interest nor are they narrowly tailored to serve such an interest.

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74. Additionally, on information and belief, in violation of the First Amendments’ Establishment Clause and Free Exercise Clause, the Navy has tried to established a defacto liturgical or “high church” “General Protestant” religion, disfavoring other “Low church” Protestant forms of worship and limiting the opportunity for non-liturgical Navy personnel to meet their religious needs. In other words, the Navy has attempted to squeeze all Protestant servicemen and women (high and low church), including CFGC personnel, into a single liturgical worship mold with its “General Protestant” service while ignoring the religious needs of non-liturgical personnel. See, e.g., ¶106 Infra.
COUNT 2
B. The Navy’s Manifest Hostility To CFGC’s Charismatic Religious Tradition Violates the First Amendment. 75. The allegations of paragraphs 1 through 74 above are incorporated herein by reference as though pleaded in full.
76. The Navy’s illegal religious preference system and discrimination against CFGC chaplains, is one aspect of manifest Navy hostility toward CFGC’s religious beliefs in violation of the First Amendment.
77. The AFRPR provides irrefutable evidence of the Navy’s religious bias and hostility against CFGC’s non-liturgical Charismatic tradition, church groups and membership. a. Although CFGC membership exceeds that of most liturgical Protestant denominations, ¶¶6, 28 supra and the 1999 Yearbook at 352 and 353 (Exhibit 4), the Navy has refused to record the faith group or religious tradition of CFGC Navy personnel.
b. After the Gulf War, the Armed Forces Chaplains Board developed a system that would have more clearly identified the religious preferences of all service members, including CFGC Navy personnel. The Navy torpedoed that proposed system.
78. There is no reason other than religious bias for not recording CFGC members religious preference while recording the denominational preferences of other Navy personnel. The collection of this information establishes that religious preference is important to the Navy, including being able to evaluate the religious needs of sailors and marines. The Navy cannot meet the Free Exercise needs of its CFGC members without determining their identity.
79. The Navy’s refusal to record CFGC’s Navy personnel’s religious preference is especially suspect in light of the Navy’s abandonment of its objective criteria for determining Navy chaplain allocations among faith groups. By refusing to collect information on CFGC’s Navy population, the Navy can continue to ignore the fact that its subjective chaplain allocation criteria, i.e., “the needs of the service”, is in fact not focused at meeting the free exercise needs of its personnel but at maintaining a liturgical Protestant domination. Both policies fail strict scrutiny, or any level of scrutiny, since neither has any legitimate purpose or rational basis.
80. The Navy’s hostility is also evident by the indignities CFGC chaplains have suffered and lower performance evaluations they have received from senior chaplains based primarily on their identification as CFGC members.
81. The Navy’s hostility violates the Establishment, Free Exercise and free speech Clauses of the Constitution’s First Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause.
COUNT 3
C. The Navy Denies CFGC Chaplains and Navy Personnel Their Right To Freely Exercise Their Religious Tradition 82. The allegations of paragraphs 1 through 81 above are incorporated herein by reference as though pleaded in full.

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83. On information and belief, by policy and practice some CFGC chaplains and like faith Navy personnel have been denied and selectively excluded from access to Navy facilities solely on the ground that the subject matter of their presentation contains religious speech from a specific viewpoint, i.e., Charismatic and low-church.
84. The Navy’s discriminatory policies and hostility identified in this Complaint deny CFGC Navy personnel their First Amendment constitutional right to exercise their religion by denying or severely limiting their access to chaplains of their faith group. See 32 C.F.R. § 65.3. a. The Navy’s religious discrimination has caused CFGC to recommend that Charismatic clergy not seek commissions in the Navy chaplaincy. Ammerman at 9, ¶ 37.
b. The Navy’s anti-CFGC hostility and its non-promotion and non-retention policy for CFGC chaplains has kept the number of CFGC Navy chaplains small, preventing CFGC’s viewpoint or needs from being considered in Navy religious decisions.
85. The Navy’s religious quota system and preferential treatment for specific religious traditions also establishes an unconstitutional religious test for Navy chaplain promotion and career opportunities that cannot survive strict scrutiny since the test has no other purpose than to deny CFGC Navy personnel their First Fifth and Amendment Rights.
86. The Navy’s discriminatory policies identified herein penalize CFGC chaplains for their religious faith, free exercise of their religion, and religious speech. This results in manifest unlawful governmental hostility toward Navy Charismatic chaplains and denies CFGC Navy personnel their First Amendment Constitutional right to exercise their religion and their Fifth Amendment right to equal treatment under the law.
COUNT 4
D. THE CURRENT NAVY CHAPLAIN CORPS’ PROMOTION AND CAREER SYSTEMS EMPLOY ILLEGAL RELIGIOUS, RACIAL AND GENDER BASED QUOTAS DENYING CFGC CHAPLAINS EQUAL TREATMENT UNDER THE LAW
87. The allegations of paragraphs 1 through 86 above are incorporated herein by reference as though pleaded in full.
88. Comparison of the promotion and career advancement experience of CFGC Navy chaplains with CFGC’s Army and Air Force chaplains clearly establishes that the Navy’s promotion system has created an intentional and/or disparate adverse impact on CFGC’s Navy chaplains.
89. In addition to the religious preference and discrimination described above, in policy and practice, the Navy makes impermissible religious, racial and gender classifications through the identification of faith group, minority and gender status of each chaplain considered for promotion. Since the Navy does not use faith group identification to insure promotions are focused at meeting the Free Exercise needs of the Navy and the racial and gender identification are not based upon any reported findings of institutional discrimination affecting the chaplains under consideration, this practice serves no other purpose than to create suspect classifications to maintain illegal quotas. This is a violation of the due process and equal protection guaranteed by the U.S. Constitution’s Fifth Amendment.
90. The Navy’s deliberate use of racial and religious classifications and quotas also violates the provisions of the Civil Rights Act, 42 U.S.C. § 1981, other civil rights laws, and both Department of Defense and the Navy’s own regulations, and has injured CFGC chaplains.
COUNT 5
E. THE NAVY’S CHALLENGED ACTIONS DISCRIMINATE AGAINST THE CFGC PARTIES’ RELIGIOUS FREE SPEECH

2000 WL 35633644
91. The allegations contained in paragraph 1 through 90 of the Complaint are incorporated herein by reference, the same as though pleaded in full.
92. The Navy’s discrimination against CFGC chaplains and Navy personnel manifests unlawful disapproval of the religious speech that is inherent in their Charismatic tradition and way of faith. This is a violation of the rights guaranteed under the First and Fifth Amendments.
COUNT 6
F. PLACING MORE THAN ONE CHAPLAIN ON NAVY CHAPLAIN PROMOTION BOARDS VIOLATES THE FIRST AND FIFTH AMENDMENTS 93. The allegations contained in paragraph I through 92 of this Complaint are incorporated herein by reference, the same as though pleaded in full.
94. Navy Chaplain promotion boards are dominated by chaplains. Since these Navy promotion boards are not focused on meeting the religious needs of the Navy, placing more than one chaplain on Navy chaplain promotion boards: a. Serves no legitimate purpose except to maintain unofficial but illegal religious quotas in violation of the Constitution’s First and Fifth Amendments. This purpose is apparent in the display of the faith group code for each chaplain being considered for promotion throughout the board process.
b. Unconstitutionally delegates to a religious body a governmental function.
c. Allows the liturgical Protestant tradition to operate the Navy Chaplain Corps much like a religious patronage system in violation of the First and Fifth Amendments.
d. Provides an opportunity for religious bias or denominational issues to interfere with selecting the best qualified chaplains for promotion.
95. The Chief of Chaplains’ control of the composition and membership of chaplain promotion boards serves no purpose or rationale except to control the composition and makeup of the Chaplain Corps in a manner to insure the continued operation of the Navy’s illegal religious quota system for the benefit of preferred religious traditions in violation of the Constitution’s First Amendment.
96. The Navy policies and procedures challenged in this Count are subject to strict judicial scrutiny, a test the Navy will fail since they are not related to a compelling government interest and are not narrowly tailored to achieve that purpose.
COUNT 7
G. THE USE OF CHAPLAINS TO RATE OTHER CHAPLAINS, EXCEPT IN UNAVOIDABLE CIRCUMSTANCES, VIOLATES THE FIRST AMENDMENT 97. The allegations in paragraphs 1 through 96 above are incorporated herein by reference as though pleaded in full.
98. The Navy has established organizational structures and systems, e.g., Regional Chaplains, in which senior chaplains (primarily liturgical) rate other chaplains, even when those chaplains are assigned to a specific Navy base or facility. In other words, the chaplain is rated by the Regional Chaplain rather than the commander of the base on which the chaplain serves.
99. The above structures and systems have no valid or reliable means of insuring religious neutrality, i.e., keeping religious animosity, bias or differences out of the rating process, and are without realistic, religiously neutral standards.

2000 WL 35633644
100. Such systems violate the First Amendment. There may be exceptions based on unusual circumstances or absolute necessity, but these are not apparent in the Regional Chaplain case.
COUNT 8
H. FUNDING OF THE NAVY CHAPLAIN CORPS EXCEEDS CONGRESS’ AUTHORITY UNDER ARTICLE I, SECTION 8 OF THE CONSTITUTION’S TAXING AND SPENDING CLAUSE 101. The allegations in paragraphs 1 through 100 above are incorporated herein by reference as though pleaded in full. 102. Funding the Navy Chaplain Corps and its associated programs and activities involves a substantial expenditure of federal tax funds. 103. The Establishment Clause of the Constitution’s First Amendment specifically limits the taxing and spending power conferred by Article 1 Section 8. 104. Congress’ use of tax funds, including those collected from the CFGC Parties, or the Navy’s use of such funds to support the establishment or endorsement of a preferred religious tradition in the Navy Chaplain Corps violates the Establishment’s Clause specific prohibition on such funding or support.
COUNT 9
I. THE NAVY’S POLICY OF PROMOTING ONLY A “GENERAL PROTESTANT” SERVICE AND RESTRICTING OTHER FORMS OF NON-LITURGICAL RELIGIOUS SERVICES VIOLATES THE FIRST AMENDMENT 105. The allegations in paragraphs 1 through 104 above are incorporated herein by reference as though pleaded in full. 106. The Navy’s emphasis on a liturgical General Protestant service and the subsequent disfavoring of non-liturgical Protestant services violates the First Amendment’s Establishment and Free Exercise Clauses. For example: a. In 1999 at the Navy base in Naples, Italy, there were nine English speaking non-liturgical churches off base whose membership was made up almost entirely of Navy personnel assigned to the Naples Navy base. b. The liturgical General Protestant service on base was poorly attended. c. The Navy would not allow the civilian non-liturgical pastors of these non-liturgical off-post churches to visit their Navy members on post, even when those members were in the hospital or had other need for spiritual or religious counseling and encouragement. d. In the past, the Naples’ Navy Chaplain office has expressed and manifested indifference to the religious and religious education needs of the base’s non-liturgical Navy personnel. e. Although DOD and Navy regulations provide for hiring civilian clergy when necessary to meet the free exercise needs, the Navy has done nothing to meet the religious needs of non-liturgical Navy personnel in Naples. f. This example shows how the Navy simultaneously violates the First Amendment’s Free Exercise and Establishment Clauses.

2000 WL 35633644
COUNT 10
J. DECLARATORY RELIEF PURSUANT TO 28 U.S.C.§§ 2201 AND 2202 107. The allegations in paragraphs 1 through 106 above are incorporated herein by reference as though pleaded in full. 108. There is a bona fide dispute between the CFGC parties and the Navy concerning whether the above challenged Navy policies violate the Constitution’s First Amendment’s Establishment, Free Exercise and Free Speech clauses and the Fifth Amendment’s due process (equal protection) clause, the Civil Rights Act and the Navy’s own regulations. 109. Pursuant to 28 U.S.C. §§ 2201 and 2202, this Court may declare the rights of a party in an actual case and controversy. CFGC seeks such a declaration.
COUNT 11
K. A PERMANENT INJUNCTION IS APPROPRIATE UNDER THE CIRCUMSTANCES 110. The allegations in paragraphs 1 through 109 above are incorporated herein by reference as though pleaded in full. 111. The CFGC Parties have suffered, are suffering and will continue to suffer immediate, severe, and irreparable injury by virtue of the Navy’s acts, policies and practices as set forth herein. 112. Unless restrained by this Court, the Navy’s future violation of the CFGC Parties’ fundamental rights guaranteed by the Constitution’s First and Fifth Amendments, the Civil Rights Act and the Navy’s own regulations is an absolute certainty. 113. The CFGC Parties have no plain, adequate, or complete remedy at law to address the Navy’s violations of their constitutional, statutory and regulatory rights, and this suit for Injunctive and Declaratory relief is their only means of securing complete and adequate relief. No other remedy would offer the CFGC Parties substantial and complete protection from continuation of the Navy’s unlawful and unconstitutional acts, policies and practices. 114. As CFGC does not have an adequate remedy at law, it seeks injunctive relief against the Navy, ordering it and its personnel to do the following, as detailed below in the prayer for relief.
X. PRAYER FOR RELIEF WHEREFORE, CFGC prays for a declaration, injunction and judgment against the Defendants as follows:
A. DECLARATORY RELIEF CFGC requests that this Court render a Declaratory Judgment that: 1. The following Navy policies and practices are unconstitutional as applied and suppress the CFGC Parties’ fundamental rights secured by the First and Fifth Amendments to the United States Constitution, and that they also violate federal Civil Rights laws, and DOD and Navy regulations: a. The “Third’s Policy” or Rule which distributes chaplain allocations between select faith groups or denominations. b. The Navy’s policies of i) placing more than one chaplain on chaplain promotion selection board and, ii) allowing the Chief of Chaplains to determine chaplain promotion board members. c. The Navy’s policy of identifying the faith group, minority and gender status of each chaplain being considered by a

2000 WL 35633644
promotion board.
d. The Navy’s hostility to and suppression of non-liturgical alternatives to a liturgical General Protestant service and/or other religious education services, e.g., Sunday School, and the Navy’s concomitant endorsement and establishment of an official liturgical General Protestant service and religious education.
e. The establishment of systems and rating chains in which chaplains normally rate other chaplains of different faith groups and which have no independent safeguards or provisions to: i) insure religious neutrality in ratings or assignments, or, ii) established criteria to insure denominational considerations do not enter into the evaluation.
2. The Navy’s policy of refusing to record the religious preference of CFGC Navy personnel constitutes unconstitutional government hostility to the CFGC Parties.
3. The dominance of the Navy’s senior ranks and key billets by liturgical Protestant chaplains, out of all proportion to their actual percentages in the Navy, and the concomitant absence of appropriate numbers of non-liturgical Protestant chaplains in those same ranks and billets is:
a. The result of the Navy’s illegal religious discrimination and bias.
b. An illegal endorsement of the liturgical Protestant tradition.
c. A violation of the First Amendment.
4. The Navy’s policy and practice of favoring certain religious denominations and discriminating against others in promotion, retention and key billeting decisions, has resulted in an unconstitutional religious test and endorsement of religion, and illegal discrimination in violation of the First and Fifth Amendments and 42 U.S.C. § 1981.
5. The equal opportunity instructions issued by the Secretary of the Navy for the Fiscal Year 1993 through 2000 chaplain promotion boards violate the Fifth Amendment to the United States Constitution and the Civil Rights Act, 42 U.S.C. § 1981 et seq, and DOD and Navy regulations and policies.
6. The Navy chaplain selection boards for Lt. Commander and Commander for FYs 1992 through 2000 have been improperly biased with religious, race and gender discrimination, that CFGC (and other non-liturgical) chaplains have been unlawfully denied a fair opportunity for promotion in violation of the Constitution, federal statutes, and DOD and Nay regulations; and that the results of such promotion boards are void and the Navy’s personnel actions in response to those boards are ultra vires.
B. Injunctive Relief
CFGC does not have an adequate remedy at law, so CFGC seeks injunctive relief against the Navy, ordering the Defendants, their agents and employees be enjoined from: 1. Further and future discrimination in promotion, career development and billeting decisions against CFGC chaplains based on their faith group and religious beliefs.
2. Considering or displaying denomination or faith group for chaplains being considered by chaplain Promotion Selection Boards except only for the limited purpose of meeting the free exercise rights of Navy Personnel when based on actual Navy demographics.
3. Applying racial or gender quotas, or identifying the racial or gender classification of chaplains being considered for promotion, retention, career development and billeting decisions in violation of the Fifth Amendment’s Due Process and Equal Protection provisions.
4. Further and future interference in any manner with the fundamental right to Free Exercise of religion by CFGC chaplains

2000 WL 35633644
and Navy personnel, including access to chapel and other religious and religious education facilities.
5. Further and future interfering in any manner with CFGC chaplains’ fundamental Free Speech rights including the religious content and viewpoint of their speech.11
6. Having more than one chaplain participate on chaplain promotion boards or having the Chief or the Deputy Chief serve as president of a chaplain promotion board. 7. Having a “reserved” seat for a particular denomination on promotion or career selection boards, except where such is needed to further the Free Exercise interests of Navy personnel based on actual and relevant Navy demographics.
8. Limiting Protestant services to a “liturgical General Protestant” service when non-liturgical Protestant chaplains are available for alternative services.
9. Restricting or denying Navy facilities for non-liturgical services or other religious activities where a non-liturgical chaplain (or authorized lay leader) is present and there are non-liturgical Navy personnel also present.
10. Having chaplains rate other chaplains, except in exceptional cases based on operational necessity, but only where there are safeguards to insure that denominational or religious neutrality is maintained and there are established objective criteria for evaluation.
C. AN ORDER CFGC requests that the Court issue and order requiring the Navy to: 1. Eliminate all vestiges of its past religious bias and discrimination in selecting chaplains for promotion and career assignments. For chaplain promotion selection boards, this includes:
a. Removal of all reference to a chaplain’s faith group or denomination in the selection process unless required to remedy past discrimination or insure that the free exercise needs of the Navy are met.
b. Allow only one chaplain to participate on such boards.
c. Insure that the one chaplain board member is chosen by a neutral system in a religiously neutral manner by Navy officials other than chaplains.
d. Provide a system of checks and balances to insure that religion, faith group or denomination does not affect the promotion or career process except to the extent necessary to insure that the Navy’s free exercise needs are met.
2. Eliminate all vestiges of gender or racial quotas or categories in the promotion process and forbid the identification of race or gender, unless linked to remedying past discrimination.
3. Take all necessary immediate and affirmative actions to:
a. Bring the Navy Chaplain Corps, including its current rank structure, into line with the Navy’s religious demographics and;
b. Adjust and fill Navy Chaplain Corps’ key billets in a manner that is religiously non-discriminatory but corrects the current disparity between Chaplain Corps and actual Navy religious demographics and insures that chaplain career assignments are made in a non-discriminatory manner that meets the needs of the service.
4. Review all evaluations of CFGC chaplains by other chaplains and energetically and effectively investigate all allegations of religious prejudice by senior chaplains in rating CFGC chaplains. Where actual prejudice is found or bias demonstrated, correct the records and remove the prejudice from the affected CFGC chaplain’s official file and career.

2000 WL 35633644
5. Develop new policies and guidelines that: a. Provide approval and support for alternative non-liturgical services that meet the needs of the Navy’s non-liturgical religious community at Navy installations, posts, ships and facilities and; b. Insure that such services receive priority over General Protestant services where non-liturgicals constitute a majority at the installation, post or facility. 6. Develop a system to insure that the above reforms are working and effective. 7. Develop a system to officially record the religious preference of CFGC Navy personnel. 8. Issue the necessary orders voiding all adverse personnel actions flowing from the Thirds Policy and the unconstitutional promotion boards described herein (see X.A.1 and 6 supra), including but not limited to separations, and take other action to remedy the results of the Navy’s illegal activities described herein.
D. Attorneys’ Fees and Other Relief 1. That this Court award CFGC the reasonable costs and expenses of this action, including attorneys’ fees in accordance with the Equal Access to Justice Act, 28 U.S.C. § 2412; the Civil Rights Act, 42 U.S.C. § 1988; and/or any other applicable statue or rule of law or equity. 2. That this Court: a. Retain jurisdiction of this matter for the purposes of enforcing the Court’s orders; b. Appoint a monitor or special master to monitor the Navy’s compliance and; c. Require the Navy to provide periodic progress reports as to its progress in complying with B and C above.
DATED: January 5, 2000 Respectfully submitted, <<signature>> Arthur A. Schulcz, Sr. D.C. Bar No. 453502 ENVIRONMENTAL COUNSEL 4910 Massachusetts Ave. N.W., #221 Washington D.C. 20016 202-686-7602

 
 2000 WL 35633619 (D.D.C.) (Trial Pleading) United States District Court, District of Columbia.
Robert H. ADAIR, and Michael Belt and Dr. Gregory R. De Marco and Furniss Harkness and Michael Lavelle and George W. Linzey and Timothy D. Nall and Thomas Rush and James M. Weibling and Michael A. Wright
and John Witherspoon and William C. Blair and Larry Farrell and Rafael J. Quiles and Lyle Swanson and Ronald Tomlin and David S. Wilder, Plaintiffs, v.
The Honorable Richard J. DANZIG, and Vice Admiral Norbert R. Ryan Chief of Naval Personnel, and Rear Admiral Byron Holderby, Jr Chief of Chaplains and Rear Admiral Barry Black Deputy Chief of Chaplains and
The United States Navy, Defendants.
No. 1:00CV00566(JLG). September 5, 2000.
Class Action First Amended Complaint for Declaratory Judgment, Injunction and Equitable Relief to Address Defendants’ Unconstitutional Religious Discrimination, Violations of First and Fifth Amendments, and the Religious
Freedom Restoration Act
Respectfully submitted, Arthur A. Schulcz, Sr., Counsel for the Plaintiffs, D.C. Bar No. 453502, 2521 Drexel Street, Vienna, VA 22180.
I. INTRODUCTION
1. This first amendment to the Navy non-liturgical1 Christian chaplains’ Class Action Complaint adds six additional Plaintiffs; provides specific information as to when some of the Plaintiffs were injured; alleges both the self-concealing nature of the Defendants illegal prejudice and actions as well as fraudulent concealment of that prejudice and Plaintiffs’ cause of action; and adds an additional Navy defendant and three additional counts.
This a federal class action challenging religious discrimination in the U.S. Navy Chaplains Corps (the “Corps”)including the establishment of illegal religious quotas for Navy chaplain promotions and career opportunities; the establishment of a preferred religious tradition and a religious patronage system in the Corps; and creation of a pervasive climate of bias, animosity and deceit toward non-liturgical Christian Navy chaplains; and violations of the First and Fifth Amendments in the Corps’ promotion, accession, retention and separation decisions.
II. JURISDICTION AND VENUE
2. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331, 1343, and 1346, and 5 U.S.C. § 702. A declaration of the rights of Navy non-liturgical Christian chaplains and the constitutionality of various Navy and Corps policies is sought pursuant to 28 U.S.C. §§ 2201 and 2202. Venue is appropriate under 28 U.S.C. § 1391 (e) since the defendants are a federal agency and its officials which are located in Washington D.C.
III. PARTIES

A. Plaintiffs

3. The following named plaintiffs bring this action as a class action on behalf of themselves and all other persons similarly

situated in the class as defined below in ¶ 9:

a.

ROBERT H. ADAIR resides at 304 Cowan Street, Columbia, TN 38401. He enlisted in the Navy in January, 1967.

After completing his enlistment in 1970, he went to college and seminary, earning a Master of Divinity Degree in 1977.

Endorsed by the Southern Baptist Convention, a non-liturgical Christian denomination, he entered active duty as a Navy

chaplain in 1979. Despite his outstanding service, he was selected for early retirement in FY 95 by a Selective Early Retirement

Board (SERB) that selected only non-liturgical Christian chaplains while allowing liturgical chaplains with inferior records to

continue on active duty. He involuntarily retired in 1996. But for the SERB decision, believed to rest on illegal religious

discrimination and animosity toward his faith group, Ch. Adair would have continued on active duty and retired at a higher pay

rate.

b.

MICHAEL BELT is an active duty chaplain in the grade of Lieutenant residing at 44856 Corte Siera, Temecula, CA

92592. Enrolling in the Navy Chaplain Candidate Program as a United Methodist, he changed his endorsement to the non-

liturgical Church of the Nazarene before entering on active duty in September 1991. While stationed on Okinawa from 1991

to 1993, his liturgical Protestant rating chaplain gave him a poor fitness report after Ch. Belt failed to support his rater’s selling

of tickets to the rater’s prayer breakfasts. This same liturgical Protestant chaplain later berated Ch. Belt for preaching that men

who call themselves Christians should live as Christians and accordingly gave Ch. Belt a low mark on his fitness report. After

Ch. Belt and another non-liturgical chaplain reformatted a Protestant worship service with low attendance, the congregation

grew from 40 to approximately 130. In recognition for this, he was told by his rating liturgical Protestant chaplain that his style

of worship was “hogwash.” The liturgical Protestant then took over the service, changed it back to a liturgical service,

effectively killed the service and drove the congregation away.

At his current station in San Diego, he has witnessed and experienced liturgical bias and prejudice against himself and other non-liturgical chaplains, including being excluded from decisions and meetings that affected he-and other chaplains until after decisions had been made at exclusively liturgical chaplain meetings, and seeing liturgical Protestant chaplains whose work output was below their peers nonetheless being given higher fitness reports. As a result of the Navy’s denominational prejudice, Ch. Belt was non-selected for promotion to the grade of Lieutenant Commander (“LCDR”) by the fiscal year (“FY”) 1999 and 2000 chaplain promotion boards. Ch. Belt became aware of the Navy’s systematic bias in early 2000 after talking with another chaplain whose endorsing agency (the Chaplaincy of Full Gospel Churches) had filed suit against the Navy.

c.

Dr. GREGORY R. DE MARCO resides at 113 Tanning Way, Clovis, NM 88101. He served as an enlisted Navy “hard

hat” deep sea diver from 1972 to 1981 when he left the Navy for seminary. He was commissioned as a non-liturgical chaplain

in 1983 and remained in the Navy Reserve until he was recalled to active duty in 1987. He was promoted to Lieutenant

Commander in 1993 and remained on active duty until 1998. His last duty assignment was in Naples, Italy, from October 1995

to June 1998. In December 1997, he was criticized by the liturgical command chaplain for ending his prayers “in Jesus name”.

When he insisted on praying in accordance with his beliefs and religious tradition as allowed under Navy regulations and

federal statute, the liturgical command chaplain rated him in a way that made him non-competitive for promotion. This rating

was based on faith group prejudice and bias and deliberately ignored Ch. De Marco’s service to the Naples Protestant

community including the fact that the congregation had grown from 25 to over 200, making it the largest Protestant worshiping

community in the Navy in Europe. His evaluation also ignored the large corresponding increases in the religious education and

children’s programs due to Ch. De Marco’s efforts. The systematic faith group hostility and prejudice evidenced at Naples

made it clear to Ch. De Marco that he had no chance for promotion, that his Navy career was effectively finished and that the

Navy’s continuing covert prejudice would make his life unbearable. He chose to retire early to save further humiliation,

minimize his personal and professional injury, and minimize the disruption and damage to his family. In effect, the Navy’s

actions were a constructive discharge based on religious prejudice. But for this hostility, Ch. De Marco would have successfully

continued his Navy career as evidenced by his outstanding record prior to Naples.

d.

FURNISS HARKNESS is a non-liturgical Navy Reserve chaplain residing at 400 Green Acres, Memphis, TN 38117.

He entered active duty in March 1987 under the endorsement of the non-liturgical Christian Church (Disciples of Christ).

Although he had outstanding fitness reports, he found that the Navy had two systems, one for liturgical chaplains and one for

non-liturgical chaplains. After unsuccessfully attempting to obtain the same information concerning graduate school that was

provided to liturgical chaplains, he realized that those efforts to obtain equal treatment had effectively ended his Navy active

duty career. He left active duty in June 1995 and attempted to return to his Reserve status. In an illegal act of retaliation, the Navy Chaplain Corps issued a new instruction in an attempt to deny his reserve affiliation. Ch. Harkness asked the Navy Inspector General (NIG) to investigate the legality of that attempt. The NIG subsequently found the Chaplain Corps’ actions and its “new policy” to be without authority, vindicating Ch. Harkness’ position. The report admonished several senior chaplains for retaliation. The Chaplain Corps’ retaliatory and discriminatory actions, based on religious prejudice, precluded Ch. Harkness from drilling for a year and a half.

As a further act of retaliation, in mid-2000, the Navy failed to select Ch. Harkness to the grade of Commander, despite his outstanding record and his completion of the Naval War College. On information and belief, the reason for his non-selection was his participation in this lawsuit, his previous attempts to obtain equality in treatment, and his prior complaint to the NIG concerning the Chaplain Corps’ illegal attempt to deny him Reserve affiliation. One of the board members on his recent selection board was implicated in his prior successful NIG retaliation complaint.

e.

MICHAEL LAVELLE resides at 16 Rosewood Circle, Silver City, NM 88061. Despite an outstanding career as a

non-liturgical Navy chaplain including participation in Operation Desert Storm and a preponderance of duty with the Marines,

he was passed over for Commander in FY 1998. Faced with the reality that few, if any, chaplains are subsequently selected

once they have been non-selected, and to avoid further humiliation, prejudice and the possible financial injury he and his family

might suffer if he continued to remain on active duty, Ch. Lavelle applied for early retirement under the Temporary Early

Retirement Act (TERA) and retired on October 1, 1998.

A Department of Defense (DOD) investigation of that FY 98 board following a complaint of religious discrimination by another chaplain revealed that the board had illegally used faith group as a promotion criteria and promoted liturgical chaplains with records inferior to those who were not selected, including Ch. Lavelle. See ¶ 52 infra. But for the Navy’s illegal prejudice and faith group quota system, he would have been promoted and continued his Navy career. The Navy’s faith group prejudice and the realities of the Navy’s promotion and separation policies constitute a constructive discharge.

f.

GEORGE W. LINZEY resides at 1555 Satellite Blvd., No. 65, San Diego, CA 92154. He was commissioned as a

chaplain in the Naval Reserve in April, 1975 and entered active duty as a Navy chaplain on September 6, 1975 under the

endorsement of the National Association of Evangelicals. Although he was the youngest chaplain to make Captain, he was

selected for early retirement by the FY 1998 SERB. Of the five chaplains selected by that board for early retirement, four were

non-liturgical. On information and belief, the persons selected for involuntary retirement by the SERB were personally pre-

selected by the Chief of Chaplains (hereafter the “Chief”), rather than by the board itself based on an independent records

review. The Chief’s selections for early retirement, including Ch. Linzey, were based on religious reasons, rather than on the

basis of the selectees’ records as chaplains.

g.

TIMOTHY D. NALL is currently a chaplain in the Naval reserve endorsed by the Baptist Missionary Association of

America and lives at 12010 Black Walnut Circle, Little Rcck, AR 72209. He entered active duty as a chaplain in October 1984.

Asked to take over a small chapel and breath life into it, he increased the congregation from 40 to 150 in 13 months. Despite

this and other exemplary work, he received no credit for his accomplishments on his fitness reports. As a result of the Navy

systematic discrimination, he was forced to leave active duty in September 1988, but has remained in the Navy reserves. Since

1938, he has served numerous active duty tours, on some of which he has encountered the same covert non-liturgical prejudice

and bias and to which the Navy has turned a blind eye.

He became aware of the evidence exposing the Navy’s faith group quota system and systematic non-liturgical prejudice only after talking with one of the other Plaintiffs in early 2000 and examining the results of the Stafford and Ellis Reports described infra.

h.

THOMAS RUSH lives at 633 Anthony Drive, Clovis NM 88101. He entered the Navy as a Surface Weapons line

officer in 1977. In 1982 he left to attend seminary. He was commissioned as a Reserve chaplain in 1986 and came on active

duty as a Navy chaplain in January 1990. Despite outstanding fitness reports, he was not selected for promotion because the

Navy discriminated against his non-liturgical status by turning his excellent prior Navy line service into a promotion liability.

The Navy counted his prior line officer service to place him before the chaplain promotion board but then disregarded his

previous fitness reports, considering only the few that he had as an active duty chaplain. Because the other chaplains being

considered had more reports as chaplains, he was non-competitive for promotion. When he asked why he was not selected for promotion to Lieutenant Commander (hereafter “LCDR”) in 1993, the senior Navy Chaplain “detailer” told Ch. Rush that he did not have enough “sea time”, an obvious fabrication due to Ch. Rush’s extensive time at sea.

Knowing that subsequent selection for promotion was an impossibility for a non-Liturgical who had been previously nonselected, he applied for and was approved for the Voluntary Separation Incentive Program. Asked by the Navy to remain on active duty for a short period of time to meet the Navy’s temporary need for chaplains, he agreed and remained in the Navy until August 31, 1994. Despite the Navy’s promise that his extension would not result in his second consideration for active duty promotion (adversely affecting his chance for promotion in the Reserve), the Navy considered and non-selected him a second time in 1994.

Forced to leave active duty because of the Navy’s systematic denominational bias in promotions, he returned to the Navy Reserve. In the context of its inter-related promotion and separation systems, i.e., up or out, the Navy’s actions were in effect a constructive discharge based on religious prejudice. But for this hostility, Ch. Rush would have successfully continued his Navy career as evidenced by his outstanding record. In 1996 he applied for and was accepted by the U.S. Air Force Reserve. There he was promoted to Major, largely on the strength of his Navy fitness reports. He is endorsed by the Southern Baptist Convention.

This treatment of Ch. Rush is an example of a systematic policy and pattern of special prejudice against non-liturgical chaplains with prior military service. On information and belief, the motivation behind this prejudice is the liturgical hierarchy’s fear that a non-liturgical chaplain’s prior military service gives him a competitive edge against other liturgical chaplain. Prior service gives a chaplain a better understanding of how the Navy works and can provide instant rapport with the sailors and Marines resulting in more effective ministry. This could result in better fitness reports. In an equitable promotion system, some of these prior service chaplains would rise to the top of the Chaplain Corps, posing a threat to liturgical domination and control.

i.

JAMES M. WEIBLING resides at 4840 Stanley Ave., Ft. Worth, TX 76115. He entered Navy Officer Candidate

School in March of 1980, graduated in July 1980 and was commissioned as an Ensign line officer. In 1985 he left active duty

to attend seminary but remained a drilling reservist. In August 1988, he resigned as a Navy line officer in exchange for a

commission as a chaplain and began his active duty in September 1989. Despite his outstanding career as a line officer, the

Navy Chaplain Corps considered such service as a liability and because of its religious animosity against non-liturgical

Christian chaplains, particularly those who had prior line service, twice failed to select him for LCDR. He was released from

active duty in February 1994.

Ch. Weibling’s attempts to understand why he was not selected for promotion were met with lies, misrepresentation and obfuscation on the part of senior Navy chaplains, e.g., all chaplains have outstanding fitness reports, need more sea time. The Chief of Chaplains denied the possibility of faith group bias or improper board member influence when Ch. Weibling raised these issues with him. Ch. Weibling’s every effort to verify whether such prejudice and impropriety existed was met with denial and deceit by senior Chaplains. He became aware of evidence of this prejudice only in Late 1999 when recalled to active duty for a short time in Naples, Italy, and he learned of the Stafford Report and its implications. A lawyer specializing in military claims that he consulted in early 2000 after his return from active duty told him he had to have “hard” evidence before filing suit. Ch. Weibling’s efforts to obtain that evidence in a timely manner were met with more Navy obfuscation and delay.

But for the Navy’s religious prejudice and denominational quotas challenged here that led to his separation, Ch. Weibling would have been prompted and continued his active duty career. The Navy’s deliberate deceit and fraudulent concealment precluded his ability to bring his claim sooner.2

j.

MICHAEL WRIGHT resides at 271 Blaydes Drive, Atoka, TN 38004. He is an active duty Navy non-liturgical

Christian chaplain and an original plaintiff under the pseudonym of JOHN ADAMS. Ch. Wright, eligible for selection to the

grade of Commander when this class action was filed and having heard that senior Navy officials had expressed their

displeasure with chaplains who dared to challenge the illegal polices cited herein, feared prejudice and retaliation during the

Commander Selection Board if his real name had been revealed before the board adjourned. That Commander board non-

selected him because of the Navy’s non-liturgical prejudice as evidenced by the fact that there were no non-liturgical Christian

chaplain board members and the disproportionate number of liturgical chaplains selected. He has witnessed and been a recipient

of instances of discriminatory treatment against non-liturgical Christian chaplains and preference for liturgical chaplains. He

has been subject to disparate treatment and suffered injury from the Navy’s faith group prejudice and bias as evidenced by his

recent non-selection.

k.

JOHN WITHERSPOON is the pseudonym for a non-liturgical Christian chaplain Navy in the Navy Reserve who,

despite an outstanding record, superior to that of many other liturgical chaplains, was non-selected for promotion because he

was of the wrong faith group and category, i.e., non-liturgical Christian. As a result of the Navy’s illegal discrimination, his

Navy career was terminated and he was forced to leave active duty. Ch. Witherspoon is in a sensitive position in the Reserve

and fears that if his real name were to become known, he would be subject to retaliation for this exercise of his right to seek

redress for the defendants’ unlawful actions challenged herein. He requests that he be allowed to pursue this action under a

pseudonym. Rear Admiral Peter Beckwith, in addressing a group of Navy Reserve officers recently, said he did not like people

who sued the Navy and they had no place in the Navy. A motion to allow his use of a pseudonym will be submitted on his

behalf separately.

l.

WILLIAM C. BLAIR resides at 1 Idlewood Drive (W.E.), Jamestown, NY 14701. He is endorsed by the non-liturgical

Assemblies of God faith group. Before attending seminary, he had prior enlisted service in the U.S. Marine Corps from

September 1972 to August 1976. He became a Navy chaplain in July 1983 and was recalled to active duty in September 1983.

He was promoted to Lieutenant Commander and selected for post graduate school. As a non-liturgical Christian chaplain, he

was required to be able to officiate at liturgical Protestant services, but liturgical Protestant chaplains were not required to know

how to or to officiate at non-liturgical services. Yet, he was not selected for Commander by the FY 97 chaplain Commander

selection board, despite an outstanding record superior to many of those selected for promotion.

When Ch. Blair attempted to find out the cause of his non-selection, he was told by a senior Chaplain Corps official that his one rating (in 16 years of service) of 3 of 3 was the only indication in his record. He appealed that rating and his non-selection to the Board of Correction of Naval Records who in effect informed him that there was nothing wrong with the board and that he had no basis for a complaint. He subsequent requests for an explanation were met with a “we can’t talk about the board - its a secret.”

Following his second non-selection, he was told by the Chaplain Corps to “either retire or be retired.” In the face of the Navy’s threat and prejudice, he retired on September 1, 1999. The result of the Navy’s prejudice, actions, and threats, constitutes a constructive discharge.

Subsequent investigations of the FY 97 Commander’s board (and the FY 98 board) found that a chaplain’s faith group became a consideration and criteria for promotion, see, e.g., ¶ 52, infra. Being a non-liturgical, Ch. Blair did not belong to a favored faith group. Upon examination of the information in the Stafford Report, id., Ch. Blair could see that his record was superior to many who were promoted; some of those promoted had in their records the very things which Chaplain Corps senior officials had consistently said would keep a chaplain from being promoted.

Other examples of the prejudice he received include the Navy’s lack of support and hostility to a “full gospel” worship service he started around 1992 in Naples, Italy, that became the largest on-base Protestant service. While the poorly attended liturgical General Protestant service received full support and funding, his well attended service had to improvise just to survive, including using a borrowed personal stereo amplifier to run the service’s sound system.

m. LARRY FARRELL resides at 117 Quail Creek Dr.O, Hubert, North Carolina 28539. Chaplain Farrell is endorsed by the Church of God, Cleveland, TN, a non-liturgical Christian faith group. He entered active duty in 1984. He was selected for promotion to Lieutenant Commander but, because he is not a liturgical and the Navy’s prejudice against his Pentecostal faith, he was not selected for promotion to Commander in fiscal year 1998, 1999, and 2000, despite outstanding fitness reports and an exemplary career.

n.

RAFAEL J. QUILES resides at 4034 28th Avenue North, St. Petersburg, FL 33713. Ch. Quiles had prior enlisted

service in 1970 - 1972 and 1973 - 1977. He reentered the Navy as a chaplain in January 1984. He is endorsed by the Church of

God, Cleveland, TN, a Pentecostal denomination and reached the rank of Lieutenant Commander. Ch. Quiles’ career and his

exemplary record should have qualified him for promotion to Commander. He was non-selected for promotion to Commander

by the FY 1997 and 1998 chaplain promotion boards. The evidence from the Naval and DOD inspector General investigations clearly shows 1) that faith group played a determining part in the selection of chaplains for promotion during those boards and 2) chaplains with records inferior to Ch. Quiles were selected for promotion while he was not. The reason he was not promoted was because he was a non-liturgical Christian and a member of a disfavored faith group, whereas those with the inferior records who were promoted were from favored liturgical faith groups. After his non-selection, Ch. Quiles was told by the Navy to leave the Navy. His retirement in December 1998 following his second non-selection was a constructive discharge.

At first Ch. Quiles thought that his non-selection was “the luck of the draw.” However, through one of the co-Plaintiffs, he learned of the Stafford report described in ¶ 52 infra, and by comparing his record objectively with those who had been promoted, he discovered the cause of his injury and the injustice done to him.

o.

LYLE SWANSON resides at 7052 Bennington Drive, Gurnee, Illinois 60031. Ch. Swanson was commissioned as a

Navy Chaplain in June 1982. He is endorsed by the Christian Churches and Churches of Christ, a non-liturgical faith group.

Despite outstanding fitness reports, including two years (1992-93) as the command chaplain in Bahrain during the Gulf War

and the subsequent period of semi-hostility, and selection for post-graduate school, he was not-selected for Commander in

1994 and 1995. He was offered and accepted the opportunity to qualify for the Temporary Early Retirement (TERA) Program.

With no other viable options, he retired under TERA in August 1997, but the Navy’s actions and prejudice constitute a

constructive discharge.

On information and belief, the basis for his non-selection to Commander and forcing his subsequent early retirement was the fact that he was a non-liturgical Christian chaplain. In early 2000 while talking with an active duty chaplain friend, Ch. Swanson first became aware of the evidence revealed in the “Stafford Report”, para. 52 infra, of the Navy’s faith group quota system, the consistent promotion of chaplains with records inferior to his and the use of religious criteria in Navy chaplain promotions, and other information concerning the allegations of this lawsuit.

P. RONALD TOMLIN resides at 2285 Cedar Gate Rd., Madison Heights, VA 24572. Ch. Tomlin originally entered the Navy as a seaman in 1972. He later left the active Navy to attend seminary. Endorsed by Liberty Baptist Fellowship, he was commissioned as a chaplain in the Naval Reserve in October 1987. From then until he was recalled to active duty on in June 1992, he answered 12 requests for temporary active duty at twelve different commands.

Despite Ch. Tomlin’s efforts to avoid consideration for promotion to Lieutenant Commander before he had obtained sufficient active duty fitness reports to make him competitive with his active duty peers, he was improperly considered by the FY 1995 and 1996 LCDR promotion boards. Ch. Tomlin brought to the Secretary of the Navy’s attention the inequity of placing recalled reservists with few active duty fitness reports in competition for promotions with other active duty chaplains who had many fitness reports. The Secretary then changed that policy. Lt. Tomlin also successfully appealed his 95 and 96 non-selections to the Board of Correction of Naval Records which voided them. The BCNR directed that he be considered for promotion by the FY 97 board.

His alleged consideration by the FY 97 LCDR promotion board was marred by several Navy improprieties, such as twice adjusting his lineal number in a six month period without changing his date of rank and placing an “A” beside only his name on the list of potential selectees. Ch. Tomlin believes this “A” was to highlight him for purposes of retaliation because of his previous successful challenge to his earlier non-selection.

A former chaplain supervisor who was a member on the FY 97 LCDR board later told Ch. Tomlin that he had no recollection of seeing Ch. Tomlin’s records in the board process. Another friend of Ch. Tomlin who was involved with the board and saw the records that went before the board also said that he had not seen Lt. Tomlin’s records.

The Board of Correction of Military Records denied Ch. Tomlin’s efforts to obtain correction of this last and continuing injustice in 1998. His request for a Navy Inspector General’s investigation of this breech of regulations and denial of his due process in promotions has been ignored and gone unanswered.

q. DAVID S. WILDER resides at 453 N.C. Highway 172, Hubert, NC 28539. He is endorsed by the Southern Baptist Convention. He entered active duty in September 1985, and has served continuously since then. Despite an outstanding record,

he was non-selected for Commander in 1999 and 2000 due to the Navy’s systematic discrimination manifested against nonliturgical Christians.
Ch. Wilder experienced blatant and obvious examples of faith group prejudice on many occasions. An example is the following incident where in violation of 10 U.S.C. § 6031 (chaplain may conduct public worship according to manner and forms of the church of which he is a member), his liturgical superior told him to conduct a service completely foreign to his religious tradition and individual faith.
From July 1990 to July of 1993, Ch. Wilder was assigned to Marine Corps Base, Camp S.D. Butler on Okinawa. He was leading the General Protestant service while Ch. Larry Farrell, a co-plaintiff, lead-an alternative Pentecostal service in the same chapel at a later time. Ch. Wilder’s General Protestant service averaged approximately 100 to 125 while Ch. Farrell’s service averaged 250-275 per week. In June 1992, Episcopal Ch. Williams, the incoming Marine Expeditionary Force chaplain, visited Ch. Wilder’s service and made “suggestions” how Ch. Wilder could “improve” his service. These amounted to making the General Protestant service into an Episcopal service. When Ch. Wilder refused, he was removed from being pastor of his chapel service although he was still the Camp chaplain. Ch. Williams took over Ch. Wilder’s General Protestant service, converting it into an Episcopal mass; attendance decreased to about 12 people per week.
Ch. Wilder started holding a Baptist service in the base theater. When his service became ten times as large as Ch. Williams’, Ch. Williams tried to close Ch. Wilder’s service, accusing him of sabotage.
Ch. Wilder became aware of the evidence.of the Navy’s systematic and pervasive anti-non-liturgical prejudice in 2000 after this lawsuit was filed by talking with other Plaintiffs and seeing evidence of the Navy’s systematic faith group bias.
B. The Defendants
4. The Honorable Richard J. Danzig is the Secretary of the United States Navy (the “Secretary”). His office is in the Department of Navy, headquartered in Washington, D.C. He is sued only in his official capacity, as civilian head of the co-defendant organization, the United States Navy (the “Navy”).
5. The Naval Defendants. Vice Admiral Ryan is the Chief of Naval Personnel, an organization within the defendant U.S. Navy, which supervises the promotion policies and personnel procedures challenged herein. Admiral Ryan’s office is in the Navy Department in Washington, D.C. and, on information and belief, he exercises supervisory responsibilities over both the current Navy Chief of Chaplains, Rear Admiral (RADM) Holderby and his Deputy Chief of Chaplains, RADM Barry Black, who is in line to be the next Chief of Chaplains. Both RADMs Holderby and Black have cooperated and conspired together and with others, to maintain the illegal policies and procedures challenged herein and to deny Plaintiffs their rights as detailed in this Complaint. They are sued in their official capacities.
6. The Navy is a military department of the U.S. Armed Forces created by an Act of Congress. 10 U.S.C. § 5011 et seq. The Navy is organized into several branches or categories, i.e., subordinate groupings of individuals possessing similar qualifications or skills. One of these branches is the Navy Chaplain Corps, 10 U.S.C. § 5142, whose members are commissioned officers possessing specialized education, training and experience to meet the spiritual needs of those who serve in the Navy and their families.
IV. DEFINITIONS
7. The Navy divides most of its Christian personnel into three general categories: Catholic, liturgical Protestant, and nonliturgical Christian3 . These are terms commonly used by Navy chaplains and the last two terms have particular significance to this case and its issues. To assist the Court in understanding these terms, the following general definitions are provided:

a.

Navy chaplains use “liturgical Protestant” to collectively describe those Christian Protestant denominations whose

religious services are characterized by a set liturgy or order of worship. This primarily includes those Protestant traditions or

denominations that began during the Protestant Reformation and who retained an established liturgy in their worship services

such as the Lutheran, Reformed and Episcopal denominations, and the denominations which later evolved from them, e.g.,

Presbyterian and Methodist.4 Navy chaplains sometimes refer to these liturgical denominations as “baby baptizers” since the

common feature of these liturgical denominations is that they all practice infant baptism, or “high church” or “main line

churches”. As used herein, “liturgical Protestant” shall mean chaplains of the Lutheran, Episcopal, Methodist, Methodist

Episcopal, United Church of Christ, Congregational, Reformed and Presbyterian denominations and the Orthodox tradition.

b.

“Non-liturgical” refers to these Christian denominations or faith groups without a formal liturgy or order in their

worship service. In general, they baptize only adults or children who have reached the age of reason and their clergy do not

usually wear vestments or special religious dress during services. Some Navy chaplains refer to these faith groups as “low

church”. Baptist, Evangelical, Pentecostal and Charismatic faith groups or traditions fall into the non-liturgical Christian

category. Although these faith groups see their tradition and beliefs arising from first century Christianity rather than the

Protestant Reformation, the Navy often refers to these faith groups as “non-liturgical Protestant”. The Plaintiffs belong to this

category and represent Southern Baptist, Christian Church, Pentecostal and other non-liturgical Christian faith groups.

V. CLASS ACTION ALLEGATIONS

8.

Plaintiffs bring this action as a class action on their own behalf and as representative parties on behalf of all members

of the class under the provisions of Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure for declaratory and injunctive

relief, and relief incident to and subordinate to it, including costs and attorney fees. A class action is appropriate because, as

shown below: (a) the class is so numerous that joinder of all members is impracticable, (b) there are questions of Law and fact

common to the class, (c) the claims of the Plaintiffs are typical of the claims of the class, and (d) the representative parties will

fairly and adequately protect the interests of the class.

9.

Definition of the Class. The class so represented by Plaintiffs in this action, and of which Plaintiffs are themselves

members, consists of present and former non-liturgical Christian Navy chaplains. It includes those non-liturgical chaplains

whose active duty careers have been terminated or otherwise adversely affected by the Navy’s and the Corps’ unlawful bias

and prejudice against non-liturgical Christian chaplains including the Navy’s use of religious and other illegal quotas, since the

Navy began its “Thirds Policy” as defined below, in violation of the First and Fifth Amendments, 42 U.S.C. § 1981, and

Department of Defense and Navy regulations concerning equal opportunity. It also includes those members of the class who

have not yet personally suffered career injury as a result of the practices and policies challenged here, but who nonetheless may

be subject to the defendants’ arbitrary religious discrimination or hostility in the future.

10. As a further explanation, the class includes those non-liturgical Christian chaplains who because of the Navy’s quota system or denominational bias against their faith group, denomination or non-liturgical tradition: (a) were non-selected for promotion (also known as a “pass over”) while on active duty and who are still on active duty, or who left the Navy voluntarily, or were involuntarily separated from the Navy based on their non-selection(s); (b) who were passed over while on active duty but are still active in the Reserves; (c) who were forced to retire as the result of Selective Early Retirement Boards (“SERB”); (d) active duty non-liturgical chaplains who may suffer prejudice as a result of the Navy’s policies challenged herein unless the Navy is restrained from continuing those actions and policies; (e) who saw or experienced the Navy’s non-liturgical bias and left active duty rather than endure that bias and prejudice; and, (f) who because of the Navy’s denominational bias were not continued on active duty past their initial tour as a result of Chaplain Accession and Reserve Evaluation (“CARE”) boards or similar procedures. The preceding examples are representative illustrations only and do not include all the examples or prejudice or harm caused by the Navy’s illegal prejudice and conduct.

11. The exact number of the class identified above is not known, but it is estimated that there are not less than 600 members. The class is so numerous that joinder of individual members in-this action is impractical.

12. There are common questions of law and fact involved in this action that affect the rights of each member of the class and the relief sought is common to the entire class, namely:

a. A long and continuing pattern of violations of the First and Fifth Amendments including: a chaplain promotion system that uses promotion boards dominated by chaplains personally selected by the Chief of Chaplains (the “Chief”) to select other chaplains for promotion; the establishment of religious quotas for chaplain promotions; the establishment of a preferred religious tradition; unconstitutional discrimination and hostility on religious grounds against non-liturgical chaplains and non-liturgical Navy personnel; the establishment of a religious patronage system; the illegal use of the SERB process to separate non-liturgical Christian chaplains based on their religious beliefs and speech;
b. The violation of non-liturgical Christian chaplains’ First Amendment rights of Free Speech; and
c. The violation of non-liturgical Christian chaplains’ Fifth Amendment right to equal treatment and other statutes and laws including 42 U.S.C. § 1981, the Religious Freedom Restoration Act and Department of Defense and Navy regulations.

13. The claims of the Plaintiffs, who are representatives of the class are typical of the claims of the class, in that the claims of all members of the class, including Plaintiffs, depend on a showing of the acts and omissions of defendants giving rise to the right of Plaintiffs to the relief sought. There is no conflict as between any individual named plaintiff and other members of the class with respect to this action, or with respect to the claims for relief set forth in this complaint. The class has similar injuries flowing from. the Navy’s systematic and intentional religious prejudice.
14. The named Plaintiffs are the representative parties for the class, and are able to, and will, fairly and adequately protect the interests of the class. The attorney for Plaintiffs, Arthur A. Schulcz, Sr., will actively conduct and be responsible for Plaintiffs’ case.
15. This class action is maintainable under Fed. Rule of Civil Procedure (the “Rules”) 23(b) because it satisfies the prerequisites of Rule 23 (a) and in addition it satisfies the following conditions of Rule 23(b): (1) the prosecution of separate actions by individual members of the class would create a risk of
(A) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the defendants, all of whom oppose the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted and refused to act on grounds generally applicable to the class, as more specifically alleged below, on grounds which are generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole which this action seeks; or
(3) the questions of law and fact common to the members of the class predominate over any questions affecting individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

16. The findings required by Rule 23(b)(1) and (2) are supported by the fact that there is a large class of non-liturgical Christian

chaplains against whom the Navy has operated in a systematic discriminatory purpose violating the Constitution and the Navy’s

own regulations and promotion policies. The declaratory and injunctive relief sought will affect all persons affected by the

alleged discrimination. The findings required by Rule 23(b(3) are supported by fact that the constitutional and federal questions

raised by Plaintiffs dominate this action and apply to all members of the class. If Plaintiffs are successful, any individual relief

that is incidental to this action will be determined by statute and require little if any involvement by the court. Additional

considerations:

a.

The cost of pursuing individual relief would seem to preclude individual actions as evidenced by the almost complete

lack of individual actions in this area.

b.

This is the third action challenging the Navy Chaplain Corps’ policies and procedures. The first action, Sturm v.

Danzig, is an action brought in the U.S. District Court in San Diego in October 1999 by an active duty chaplain raising many

of the same issues as in this case. The second action, Chaplaincy of Full Gospel Churches v. Danzig, was filed in the United

states District Court for the District of Columbia, November 5, 1999 and was brought by Chaplaincy of Full Gospel Churches

(“CFGC”), an organization recognized as an endorsing agency by DOD. CFGC brought its action on behalf of itself, its active

duty chaplains and Navy members of its faith group churches. That case raises many of the same issues here but is limited to

CFGC endorsed Navy chaplains.

c.

There are no extraordinary difficulties in the management of this class action. There are no state law issues and this

type of action is analogous to civil rights actions which are often resolved in a class action.

VI. THE NAVY’S RELIGIOUS DEMOGRAPHICS
17. The Armed Forces records religious preference data for the individual service members. A 7/8/98 Report by the Defense Manpower Data Center (hereafter “DMDC”) is attached at Exhibit 1. A February 2000 DMDC Report is at Exhibit 2. This data has special relevance to this case because it provides a factual religious demographic background against which to measure Plaintiffs’ allegations and the reasonableness of the Navy’s actions and policies.
18. The DMDC data shows that the actual Navy membership of the liturgical Protestant denominations at issue here represent about 8% of all Department of Navy (“DON”) active duty personnel, i.e., both sailors and marines.5 Specifically, in 1998, those of various Methodist named or affiliated denominations, i.e., those who have Methodist, Wesley or Asbury in their name, represented approximately 3.78% (20,776) of all DON personnel (549,800); Presbyterian related denominations represented 1.05% (5,781); the various Lutheran denominations represent 2.90% (15,937); Episcopal and Reformed Episcopal represented 0.73% (4,039); Methodist Episcopal represented 0.2 % (402); Reformed represented 0.1% (288); Orthodox represented 0.1% (256); a total of approximately 8.76%. In the February 2000 report, this total had decreased to 8.03%.
19. Adding these totals with Catholics, another major liturgical denomination who in 1998 represented 24.09% (132,429) and 23.56% (125,892) of the Navy in 2000, results in a consistent combined total of less than one-third of the Navy’s total personnel, 32.85% in 1998 and 31.59% in February 2000.
20. Identified non-liturgical faith groups represent about 50% of the Navy religious population.
VII. THE NAVY’S ILLEGAL POLICIES AND ACTIONS
COUNT 1
A. THE NAVY HAS ESTABLISHED AND MAINTAINED AN UNCONSTITUTIONAL RELIGIOUS QUOTA SYSTEM
21. The allegations of paragraphs 1 through 20 above are incorporated herein by reference as though pleaded in full.
22. in the late 1960s and 1970’s, America’s religious demographics began a large, steady and measurable shift away from liturgical Protestant denominations, to non-liturgical Christian churches from which come Plaintiffs and the class. This trend continues today.
23. Until the mid to late 1980s, the allocation of authorized Navy chaplains between the various faith groups was based on objective criteria, the relative percentage a faith group or denomination represented in the total American religious

population as reported in sources such as the annual Yearbook of American and Canadian Churches. For example, if there were 100 Navy chaplains authorized and Catholics made up 25% of the American religious population and Baptists made up 20%, the Navy would try to have 25 Catholic and 20 Baptist chaplains.

24. Faced with this shrinking liturgical Protestant faith group membership and its implications for Navy chaplain faith group authorizations, in the late 1980s the Navy abandoned its “objective” criteria (linking faith group membership with chaplain authorizations) for an amorphous, subjective “needs of the service” which became the “Thirds Policy” defined below. The Navy continued to emphasize recruiting of liturgical Protestant chaplains despite the shrinking memberships of those faith groups.

25. The Navy adopted “The Thirds Policy” which divided chaplain strength allocations between Catholics who received one

third, and liturgical Protestant faith groups who received the second third. “Others” make up the last third, including

chaplains who are non-liturgical Christian and non-Christian, e.g. Jewish, Moslem. In other words, one third of Navy

chaplain promotions, retentions on active duty and accessions were allegedly reserved for liturgical Protestant chaplains,

whereas this group represented less than one eleventh of the religious membership of the Navy.

a.

The goal and effect of this Thirds Policy was to create a denominational barrier in that it allowed liturgical Protestant

chaplains to maintain liturgical control of the Navy Chaplain Corps while excluding non-liturgical chaplains from influence

and representation.

b.

This policy was applied to promotions. Analysis of promotion board results shows that this original policy continued

to remain generally in effect through FY 1995.

c.

Due to national shortages of Catholic priests, Catholics have not been able to fill their quota which has impacted on

the number of Catholics available for promotion.

d.

Chaplain promotion boards have consistently promoted at least the same number of Liturgical Protestants as non-

liturgical Christian chaplains i.e., the Thirds Policy has evolved into i) a quota making liturgical Protestant chaplain promotions

equal to non-liturgicals and, ii) a floor of at least one third liturgical Protestants in the Chaplain Corps. For example, the chaplain

LCDR and Commander promotion boards for FYs 97-99 provide the following results by religious categories. Protestant

liturgicals consistently average not less than 33.33% of promotions regardless of their percentage of the Navy’s religious

population.

FY Commander

Catholic

Prot. Liturgical

Non-liturgical

Special Worship

97

6

8

6

98

2

2

3

99

6

9

8

Total (50)

14

19(38.0%)

17

Lieutenant Commander

97

6

9

6

1

98

3

7

9

1

99

7

9

14

Total (72)

16

25(34.72%)

29

2

26. The goal of the unconstitutional “Thirds Policy” above was further implemented by a deliberate, systematic, discriminatory Navy retention policy whose purpose was to keep non-liturgical chaplains from continuing on active duty, thus assuring they would not be considered for promotion and minimizing their future influence. Although liturgical Protestant chaplains represented approximately 9% of the Navy religious population, they allegedly received 33% of the allocations and were routinely selected for retention beyond their initial 3 year tour of service in numbers disproportionate to their denominational membership percentage in the Navy.
27. In contrast, non-liturgical Christian chaplains whose faith groups had been increasing and whose faith groups represent the majority of the Navy’s religious population were routinely refused retention. This policy has resulted in the overrepresentation of liturgical Protestant chaplains and the under-representation of non-liturgical Christians in the Navy chaplain program.
28. The decision as to who would stay on or be released from active duty after their initial three years of service was not based on meeting the religious free exercise needs of Navy personnel, but solely on the basis of a chaplain’s religious faith group. This policy clearly discriminates against non-liturgical Christian chaplains and the personnel they represent and served or serves no legitimate purpose, and was not based on remedying past discrimination nor narrowly tailored.
29. These practices are subject to strict scrutiny and they violate the Constitution’s First and Fifth Amendments.
COUNT 2
B. THE NAVY HAS ESTABLISHED A PREFERRED RELIGIOUS TRADITION
30. The allegations of paragraphs 1 through 29 above are incorporated herein by reference as though pleaded in full.
31. The Navy’s unlawful religious quota system described above favors chaplains from liturgical denominations or traditions, e.g., Catholic and liturgical Protestant, in promotions, retention, and career opportunities while non-liturgical Christian chaplains are denied these same incidents to and rewards of military service.
32. By policy and practice, the Navy Chaplain command has fostered the promotion of a disproportionate number of “high church” Protestant and Catholic Chaplains to the upper ranks, i.e., Captain and Admiral, and key billets in the Navy Chaplain Corps, i.e., those positions with decision making responsibilities. For example, through July of this year, only one non-liturgical has held the office of Chief of Chaplains since 1917. (Exhibit 3). a. In January 1995, the Chaplain of the United States Marine Corps, Ch. (Captain) Larry H. Ellis, wrote a memo to the Navy
Chief of Chaplains detailing years of apparent institutional bias against “low-church” Protestant Navy chaplains in regard to assignments to the most prestigious and influential positions (which the Navy calls “billets”) within the Navy Chaplain Corps. Ellis Report (hereafter “Ellis”) (Exhibit 4).

b. In his memo, Captain Ellis states that as of his report (early 1995), only 14 clearly non-liturgical Navy chaplains had filled the 119 top Chaplain Corps billets over the prior 15 year period, i.e., a fill rate for non-liturgicals of 11.8%. Id. at ¶ 5. The fill percentage for liturgical Protestants was greater than 50%, id., far out of proportion to the percentage of the liturgical denominations in the general population or the Navy.
c. Despite this clear indicator of institutionalized religious discrimination, the Navy undertook no corrective action.

33. By policy and practice, the Navy Chaplain command has fostered a “high church” Protestant and Catholic monopoly of Chief of Chaplain’s position. For example, three out of the last four and four out of the last seven Chiefs of Chaplains have been Lutheran. Through July of this year, only one clearly non-liturgical officer has held the Navy Chaplain Corp’s highest post, Chief of Chaplains. List of Chiefs of Chaplains (Exhibit 3).

34. By policy and practice, the Navy discriminates in its chaplain retention policies on the basis of a chaplain’s religious

faith group or denomination.

a.

In spite of Title 10 U.S.C. § 632’s mandate that an officer who is twice passed over for promotion be separated from

the Navy, chaplains from favored denominations have been retained by the Navy Chaplain command even though they have

been twice passed over for promotion. For examp’e, many Catholic chaplains who have been twice passed over have been

routinely provided with additional 3rd, 4th and 5th opportunities for promotion, whereas chaplains of non-liturgical Christian

faith groups or denominations have routinely been separated after their two promotion pass overs.

b.

On information and belief, the Navy has used the Selective Early Retirement Board (“SERB”) process to thin down

the number of non-liturgical chaplains at the higher ranks, forcing them out of service early in numbers disproportionate to

other chaplains as a whole. This has insured domination of the Navy Chaplain Command by the liturgical tradition and the

minimization of non-liturgical Christian influence or opportunity for consideration for admiral.

c.

While “SERBing” non-liturgical chaplains, the Navy has brought liturgical chaplains back on active duty, promoting

some after they have returned to active duty.

d.

The Chaplain Corps has used the promotion system to enforce its promotion quotas and thereby force out otherwise

qualified non-liturgical chaplains thereby ensuring liturgical Protestaht domination of the Chaplain Corps.

35. The effect of the Navy’s denominational quota system and granting religious preferences to the liturgical Protestant religious tradition, is to impermissibly endorse liturgical Protestant as an “official” preferred religious tradition in violation of the First Amendment’s Establishment Clause. This illegal endorsement and its associated policies do not serve a compelling government interest nor are they narrowly tailored to serve such an interest.

COUNT 3
B. THE NAVY’S POLICY OF FURTHERING ONLY A “GENER L PROTESTANT” SERVICE AND RESTRICTING OTHER FORMS OF NON-LITURGICAL RELIGIOUS SERVICES VIOLATES THE FIRST
AMENDMENT
36. The allegations in paragraphs 1 through 35 above are incorporated herein by reference as though pleaded in full.
37. Additionally, on information and belief, in violation of the First Amendments’ Establishment Clause and Free Exercise Clause, the Navy has tried to established a defacto liturgical or “high church” “General Protestant” religion, disfavoring other “low church” Protestant forms of worship and limiting the opportunity for non-liturgical Navy personnel to meet their religious needs. in other words, with its mandated liturgical “General Protestant” service the Navy has attempted to squeeze all Protestant

servicemen and women (high and low church), including personnel from Plaintiffs’ non-liturgical faith groups, into a single liturgical worship mold while ignoring or actively hindering the religious needs of non-liturgical personnel.

38. On information and belief, Navy senior chaplains have denied or restricted non-liturgical chaplains’ access to Navy facilities for conducting non-liturgical services or have removed them from preaching or conducting religious services solely because they were non-liturgical chaplains and have hindered or opposed non-liturgical Christian worship alternatives, even when attendance at such alternatives exceeds that of the liturgical General Protestant service.

39. Non-liturgical chaplains have also been criticized and berated for preaching and teaching on truths of the Christian faith and their specific religious tradition.

40. On information and belief, senior Catholic and Protestant liturgical chaplains have attempted to force the general Protestant service, and all Protestant services into a liturgical Protestant mold.

41. The Navy’s emphasis on a liturgical General Protestant service and the subsequent disfavoring of non-liturgical Protestant

services violates the First Amendment’s Establishment and Free Exercise Clauses. For example:

a.

In 1999 at the Navy bases in Naples, Italy, there were nine English speaking non-liturgical churches off base whose

membership was made up almost entirely of Navy personnel assigned to the Naples Navy base.

b.

Some of the off post churches met in substandard facilities which were inadequate to hold the number of those wanting

to attend, while Catholic and liturgical Protestants enjoyed spacious on post facilities designed for their styles of worship.

c.

The Navy did not facilitate ministry to military members who could not met their religious worship needs except by

attending off post non-liturgical churches.

(1) Although DOD and Navy regulations provide for hiring civilian clergy when necessary to meet the free exercise needs, the Navy did not employ available English speaking non-liturgical pastors to meet non-liturgical free exercise needs and although these non-liturgical pastors were willing to minister to their parishioners at no cost to the government, the Navy denied base passes to minimally secured areas of Navy housing and the Naval hospital.

(2) Opportunities to worship in the non-liturgical off post churches were not advertised at the base chapels, even when off post churches provided pamphlets containing service times and directions to worship centers.

d. This example shows how the Navy simultaneously violates the First Amendment’s Free Exercise and Establishment Clauses.

COUNT 4
D. THE NAVY’S CHAPLAIN PROMOTION SYSTEM IS UNCONSTITUTIONAL
42. The allegations in paragraphs 1 through 41 above are incorporated herein by reference as though pleaded in full.
43. In contrast to the U.S. Army and U.S. Air Force which use selection boards made up of officers from other branches (both line and staff) to select chaplains for promotion, the Navy’s chaplain selection boards are dominated by chaplains; until recently, only one board member has been a non-chaplain line officer while the other board members are all Navy chaplains, who themselves represent faith groups.
44. In spite of the stated precept that the board may consider only merit and not denominational affiliation, each promotion candidate’s three digit “faith group identifier” code is prominently displayed throughout the promotion board process. Thus, the Navy chaplain promotion board members, who themselves represent particular traditions and faith groups, are clearly made aware of each chaplain candidate for selection’s denomination or faith group.

45. This procedure has no other purpose than to identify a candidate’s faith group to the board and thereby create a suspect religious category unrelated to any legitimate Navy objective. This procedure is to allow the Navy to enforce its Thirds Policy and permit chaplains to exercise their individual or faith group prejudice for or against other chaplains or faith groups, particularly non-liturgical Christian chaplains.

46. The Navy Chief of Chaplains (the “Chief”) is a Rear Admiral and approves all 3. chaplain board members for the Navy’s chaplain promotion boards.

47. The Chief’s control of the composition and membership of chaplain promotion boards serves no purpose or rationale except to control the composition and makeup of the Corps in a manner to insure the continued operation of the Navy’s illegal religious quota system for the benefit of preferred religious traditions. This violates the Constitution’s First Amendment.

48. On information and belief, Catholics and Liturgical Protestants have dominated Navy chaplain promotion boards despite the fact that these traditions represent less than a third of the religious preference of Navy personnel, see ¶ 19, supra. For example, the FY 1997 Commander promotion board had two Catholics and three Protestant liturgical board members; the 1998 promotion board for Lieutenant Commander (“LCDR”) had two Catholics and one liturgical Protestant chaplain as board members; the FY 2001 Commander’s board had a Catholic and two liturgical Protestants and no non-liturgical Christian chaplains.

49. On information and belief, the Chief of Chaplains has exercised enormous improper power and control over Chaplain

promotions.

a.

This includes informing one board of his personal List of who he believed constituted “the future of the Navy.” Those

chaplains so identified were promoted. This is a per se violation of 10 U.S.C. §§ 615 (defining type of information provided to

board) and 616(f)(2)(improper influence on board forbidden) as well as the Navy’s promotion board policies.

b.

Additionally, on information and belief, the Chief has unilaterally brought senior rankling liturgical chaplains to active

duty from the Naval Reserve who then compete and are selected for promotions without serving the necessary time in the

difficult tours and demanding assignments the Navy requires for non-liturgical chaplains to be competitive for promotion.

50. Since these Navy promotion boards are not focused on meeting the religious needs of the Navy, placing more than one chaplain on Navy chaplain promotion boards:
a. Serves no legitimate purpose except to maintain unofficial but illegal religious quotas in violation of the Constitution’s First and Fifth Amendments. This purpose is apparent in the display of the faith group code for each chaplain being considered for promotion throughout the board process.

b. Allows board members to exercise, either consciously or unconsciously, their denomination or faith group bias either (1) for those of their own faith group, thereby advancing their own faith group, or 2) against those faith groups whom they disagree with or dislike, and thereby penalize them, through the display of a chaplain’s faith group, all in violation of the First Amendment.

c. Unconstitutionally delegates to a religious body a governmental function.

d. Allows the liturgical Protestant tradition to operate the Navy Chaplain Corps much like a religious patronage system in violation of the First and Fifth Amendments.

d.

Provides an opportunity for religious bias or denominational issues to interfere with selecting the best qualified

chaplains for promotion.

e.

Promotes denomination factionalism and strife by creating the appearance, if not the reality, of promotion

considerations being made on criteria not related to career performance and forbidden by the First Amendment. This is clearly

indicated in the Stafford Report and the subsequent DOD Inspector General inspection described in ¶ 52 below.

f.

Violates federal statues and the Navy’s own regulations and policy concerning selection of best qualified candidates

for promotion.

51. The Navy policies and procedures challenged in this Count are subject to strict judicial scrutiny, a test the Navy will fail since they are not related to a compelling government interest and are not narrowly tailored to achieve that purpose.

Evidence of Religious Discrimination In Chaplain Promotions
52. In 1997, responding to an allegation of religious discrimination in Commander (0-5) chaplain promotions, Captain J. N. Stafford, special assistant for Navy minority affairs, submitted a report to the Chief of Naval Personnel on Navy chaplain promotion policies. (Exhibit 5). Capt. Stafford concluded that an objective analysis of the FY 1997 and 1998 chaplain promotion selection boards for Commander indicated “that the board may have systematically applied a denominational quota system.” Id. at 1, ¶ 2. Capt. Stafford also noted that physical fitness standards that would have kept line officers from being promoted were apparently “waived” or I ignored for certain liturgical chaplains who were nonetheless promoted. Id. at 2, ¶ 4. The March 1999 DOD IG investigation into the same boards found that faith group “may have been a factor in” both the FY 97 and 98 Commander boards in selecting chaplains for promotion. Exhibit 6 (pp.3 & 4). The DOD IG interview notes clearly show that faith group was a factor that overrode performance and less qualified personnel were promoted based on faith group.
53. Despite the DOD IG’s validation of Captain Stafford’s finding that denomination was used as promotion criteria, the Navy took no action to eliminate its “denominational quota system” for Navy Chaplains. This systemic, illegal Navy bias and selection of less qualified candidates based on liturgical affiliation has clearly diminished Plaintiffs and their class’ opportunities for promotion in violation of both the First and Fifth Amendments.
54. On information and belief, by policy and practice, at least one seat on each promotion board is reserved for a Catholic.6
55. Prior to a 1986 religious discrimination case brought by Ch. (then Lt.) Ronald Wilkins, it was not unusual to have two Catholics or more than one chaplain of the same faith group on the same board. In issuing an injunction against Lt. Wilkins’ discharge, the Wilkins Court found “that the [Navy]’s policy of placing two chaplains of the Roman Catholic faith on each and every Chaplain Corps Selection Board” was suspect and probably “a violation of the First Amendment.” Wilkins v. Lehman, Civil No. 85-3031-GT, slip op. at 8, (S.D.Cal. 2/10/86). Pursuant to that decision, for a time the Navy discontinued having two Catholic chaplains on every chaplain promotion board.
56. Although Catholics represent about 23.6% of the Navy (see Exhibit 1 and ¶ 19) and despite the Wilkins decision indicating that placing two chaplains of the same denomination on the same chaplain promotion board was constitutionally suspect, the Navy placed two Roman Catholic chaplains on the FY 1998 Chaplain Selection Board for Lt. Commander, and on the FY 97 selection board for Commander. Because the Chief selects the board members, this is not an accident or the result of some random process.
57. The above challenged policies use facially neutral regulations and statutes in an illegal, systematic, discriminatory manner to accomplish a forbidden end, i.e., religious discrimination and homogeny in the Navy Chaplain Corps.
58. All of the above represent arbitrary and illegal policies without any substantial government purpose and serve no other purpose than to perpetuate a religious patronage system in violation of the First and/or Fifth Amendments.

COUNT 5

D. THE NAVY DENIES NON-LITURGICAL CHRISTIAN CHAPLAINS AND NAVY PERSONNEL THEIR RIGHT TO FREELY EXERCISE THEIR RELIGIOUS TRADITION IN VIOLATION OF THE FIRST AMENDMENT
59. The allegations of paragraphs 1 through 58 above are incorporated herein by reference as though pleaded in full.
60. On information and belief, by policy and practice some non-liturgical Christian, chaplains and like faith Navy personnel have been denied and selectively excluded from access to Navy facilities solely on the ground that the subject matter of their presentation contains religious speech from a specific viewpoint, i.e., non-liturgical, evangelical and low-church.
61. The Navy’s discriminatory policies and hostility identified in this Complaint deny both non-liturgical Christian.chaplains and the Navy personnel of their faith groups their First Amendment constitutional right to exercise their religion by denying or severely limiting their access to chaplains and worship services of their faith groups. See 32 C.F.R. § 65.3.
62. The deliberate and systematic over-representation of liturgical Protestant chaplains ensures that the free exercise of those faith groups are more than adequately met while limiting the ability of the Navy’s non-liturgical Christian community to meet their religious needs. This also means that non-liturgical chaplains must expend more effort to meet the needs of their faith group members than is required by liturgical Protestant chaplains.
63. The above challenged policies are deliberately motivated by faith group bias. They also produce an adverse and disparate impact on non-liturgical chaplains and the Navy personnel of their faith groups.
64. The Navy’s religious discrimination, its anti-non-liturgical Christian hostility, and its non-promotion and non-retention policy for non-liturgical Christian chaplains has kept the number of non-liturgical Christian chaplains small, preventing the viewpoint or needs of their faith groups from being considered in Navy religious decisions.
65. The Navy’s religious quota system and preferential treatment for specific religious traditions also establishes an unconstitutional religious test for Navy chaplain promotion and career opportunities that cannot survive strict scrutiny since the test has no other purpose than to deny non-liturgical Navy personnel their First Fifth and Amendment Rights.
66. The Navy’s discriminatory policies identified herein penalize non-liturgical Christian chaplains for their religious faith, free exercise of their religion, and religious speech. This results in manifest unlawful governmental hostility toward Navy non-liturgical Christian chaplains and denies non-liturgical Christian Navy personnel their First Amendment Constitutional right to exercise their religion and their. Fifth Amendment right to equal treatment under the law.
COUNT 6
E. THE NAVY’S CHALLENGED ACTIONS DISCRIMINATE AGAINST NON-LITURGICAL CHRISTIAN CHAPLAINS’ RELIGIOUS FREE SPEECH
67. The allegations contained in paragraph 1 through 66 of the Complaint are incorporated herein by reference, the same as though pleaded in full.
68. The Navy’s discrimination against non-liturgical Christian chaplains and Navy personnel manifests unlawful disapproval of the religious speech that is inherent in their non-liturgical Christian tradition and way of faith.
69. This is a violation of the rights guaranteed under the First and Fifth Amendments.
COUNT 7

G. THE USE OF CHAPLAINS TO RATE OTHER CHAPLAINS, EXCEPT IN UNAVOIDABLE CIRCUMSTANCES, VIOLATES THE FIRST AMENDMENT
70. The allegations in paragraphs 1 through 69 above are incorporated herein by reference as though pleaded in full.
71. The Navy has established organizational structures and systems, e.g., Regional. Chaplains, in which senior chaplains (primarily liturgical) rate other chaplains, even when those chaplains are assigned to a specific Navy base or facility. in other words, the chaplain is rated by the Regional Chaplain rather than the commander of the base on which the chaplain serves.
72. The above structures and systems have no valid or reliable means of insuring religious neutrality, i.e., keeping religious animosity, bias or differences out of the rating process, and are without realistic, religiously neutral standards.
73. The above systems are part of a systematic means of maintaining the Navy’s illegal Thirds Policy and other discriminatory procedures, policies and objectives.
74. Such systems violate the First Amendment. There may be exceptions based on unusual circumstances or absolute necessity, but these are not apparent in most cases, e.g., Regional ChapLains.
COUNT 8
H. FUNDING OF THE NAVY CHAPLAIN CORPS EXCEEDS CONGRESS’ AUTHORITY UNDER ARTICLE I, SECTION 8 OF THE CONSTITUTION’S TAXING AND SPENDING CLAUSE
75. The allegations in paragraphs 1 through 74 above are incorporated herein by reference as though pleaded in full.
76. Funding the Navy Chaplain Corps and its associated programs and activities involves a substantial expenditure of federal tax funds.
77. The Establishment Clause of the Constitution’s First Amendment specifically limits the taxing and spending power conferred by Article 1 Section 8.
78. Congress’ use of tax funds, including those collected from the non-liturgical chaplains, Navy personnel and faith groups, or the Navy’s use of such funds to support the establishment or endorsement of a preferred religious tradition in the Navy
Chaplain Corps violates the Establishment’s Clause specific prohibition on such funding or support. Neither the taxes paid nor the funds expended are insubstantial.
COUNT 9
I. THE NAVY’S MANIFEST HOSTILITY TO NON-LITURGICAL CHRISTIAN RELIGIOUS TRADITIONS VIOLATES THE FIRST AND FIFTH AMENDMENTS.
79. The allegations of paragraphs 1 through 78 above are incorporated herein by reference as though pleaded in full.
80. The Navy’s illegal religious preference system and its resulting discrimination against non-liturgical Christian chaplains is one aspect of manifest Navy hostility toward non-liturgical Christian religious beliefs in violation of the First Amendment.
81. Comparison of the DMDC with the Corps’ chaplain allocations provides irrefutable evidence of the Navy’s religious bias and hostility against non-liturgical Christian traditions and faith groups. Although the Navy (and National) membership of

non-liturgical Christian traditions and faith groups exceeds that of liturgical Protestant denominations by a factor of four, the Navy allocates chaplain positions on an irrational and arbitrary basis designed to hinder non-liturgical Christian faith groups.
82. On information and belief, Navy senior chaplains have denied or restricted non-liturgical chaplains’ access to Navy facilities for conducting non-liturgical services or have removed them from preaching or conducting religious services solely because they were non-liturgical chaplains.
83. Non-liturgical chaplains have also been criticized and berated for preaching and teaching on truths of the Christian faith and their specific religious tradition.
84. On information and belief, senior Catholic and Protestant liturgical chaplains have attempted to force the general Protestant service, and all Protestant services into a liturgical Protestant mold. Non-liturgical Christian chaplains are required to be able to officiate at liturgical Protestant services, but liturgical Protestant chaplains are not required to know how to or to conduct non-liturgical services.
85. On information and belief, liturgical Protestant and Catholic senior chaplains have purposely given some non-liturgical Christian chaplains lower performance ratings than similarly situated subordinate liturgical Protestant and Catholic chaplains solely on the basis of their religious identification and beliefs and despite evidence of the non-liturgical chaplain’s superior performance.
86. The Navy has established two systems of discipline and administration, one for liturgical traditions, and one for nonliturgical traditions. For example, a Catholic priest accused of adultery was referred to the Military Ordinate of his church for investigation and discipline, and then returned to active duty while a non-liturgical Christian chaplain who was accused of child abuse in a divorce proceeding was not allowed back on active duty even though he was found not guilt in a civil trial.
87. The Navy has routinely provided information necessary for chaplain career planning such as post graduate education opportunities to liturgical chaplains while routinely denying the same type of information to non-liturgical Christian chaplains.
88. On information and belief, the Chaplain Corps has retaliated against non-liturgical Christian chaplains who have complained about the “second class” treatment.
89. The fact that the above incidents have taken place and have involved senior Navy chaplains is the logical extension of the Navy Chaplain Corps’ institutionalized bias against non-liturgical Christian denominations and faith groups.
90. The Navy’s hostility violates the Establishment, Free Exercise and Free Speech Clauses of the Constitution’s First Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause.
COUNT 10
J. FRAUDULENT CONCEALMENT OF THE EVIDENCE OF PLAINTIFFS’ CAUSE OF ACTION
91. The allegations in paragraphs 1 through 90 above are incorporated herein by reference as though pleaded in full.
92. All promotion board members and support personnel take an oath not to divulge the board proceedings unless he or she is released from that oath by the Secretary of the Navy or “higher authority”. This secrecy is reinforced by regulations and the Uniform Code of Military Justice.

93. The records of personnel being considered by promotion boards are protected from disclosure or exposure. A chaplain who is not selected by a board for promotion cannot compare his personnel file with other chaplains who have been selected nor know for certain which selectees meet promotion considerations or criteria.
94. The causes of action for a violation of Plaintiffs’ rights in and through the chaplain promotion process are “self concealing.” The secretive and restrictive nature of the Navy promotion system ensures that misconduct or illegality in the chaplain selection board process is easily concealed from the victims and other outsiders. This is shown by the DOD and Navy Inspector General investigations into the FY 97 and 98 chaplain Commander promotion boards.
95. The ability of the Chief of Chaplains to approve all chaplain members of a chaplain promotion board and his power to retaliate or stifle dissent minimizes the probability that misconduct will be brought to light, such as when the board president becomes overbearing or champions certain candidates for reasons other than the candidate’s records, when faith group becomes a promotion consideration, or improper criteria are considered. The DOD and Navy Inspector General investigations into the FY 97 and 98 chaplain Commander promotion boards provide evidence of all of these improprieties and that they remained concealed by the system.
96. The Navy, and the Navy Chaplain Corps in particular, has lied to, misrepresented to, or otherwise mislead Plaintiffs and others who have raised questions about the appearance of quotas, faith group prejudice, and/or the fairness or objectivity of the chaplain promotion and SERB processes.
97. Senior Chaplain Corps’ officials have consistently maintained that faith group has no part in chaplain promotions and promotions are based solely on military merit. They have said that all chaplains regardless of their faith group, compete for promotions on a level, merit based, playing field when in fact these senior Chaplains have known that faith group was a promotion factor; that the Chaplain Corps promotions were based on faith group quotas; that personal knowledge of the candidate or other non-merit based criteria was more important than military performance for Chaplin Corps promotions; and that the chaplain promotion and accession process was manipulated to ensure liturgical domination of the Chaplain Corps.
98. On information and belief, for religious reasons, including faith group prejudice and promotion of their own faith group and its members, these same senior Chaplain Corps officials have conspired among themselves and others to deny or suppress the rights of Plaintiffs and other non-liturgical Christian chaplains by depriving them of full Navy careers and career opportunities. To accomplish this, these senior chaplains, and other Navy officials, have concealed and denied the prejudice and bias in the promotion process against Plaintiffs, including the Navy’s faith group quotas. See e.g., ¶¶ 3.h, i, and I (inquiries met with lies and deception).
99. These same senior Chaplain Corps officials conspired among themselves and others to suppress the rights and limit the influence of non-liturgical Christian chaplains and did so by concealing and denying the prejudicial and biased nature of the Chaplain Corps Selective Early Retirement Boards and the purpose of those boards, i.e., minimize non-liturgical Christian influence while maintaining liturgical control over the Chaplain Corps.
100. Senior Navy Chaplain Corps officials have had a duty to reveal to Plaintiffs and all other class members who have raised questions about the fairness and equity of the promotion process, the true nature of and prejudice in the Navy’s promotion and other career related systems. These Chaplain Corps officials have breached that duty.
101. The above actions by the Navy constitute fraudulent concealment which has prevented Plaintiffs and the class from discovering the Navy’s illegal prejudice and actions which form the basis for these Plaintiffs’ causes of action.7 The self concealing nature of the promotion system and/or the Navy’s fraudulent concealment has precluded Plaintiffs and their class from seeking timely redress.
102. Plaintiffs have exercised due diligence in attempting to protect their legal rights. The Navy’s deception and actions in concealing its prejudice and other illegalities, and the self-concealing nature of the Navy’s board processes have prevented Plaintiffs from gaining the necessary information and evidence to bring their claims until the Stafford Report and its

subsequent investigations breached the chaplain promotion system’s walls of secrecy and deceit. Since then, Plaintiffs have acted in a timely manner. 103. The Navy’s above deception and concealment of its violation of regulatory, statutory and constitutional violations equitably tolls any statute of limitations for claims covered by said concealment until Plaintiffs’ discovery of the Navy’s wrong and/or, acts as an equitably estoppel against the Navy from arguing that a statute of limitation applies.
COUNT 11
K. Illegal Retaliation 104. The allegations in paragraphs 1 through 103 above are incorporated herein by reference as though pleaded in full. 105. In response to Plaintiffs’ exercise of their rights in bringing this lawsuit and/or previously exposing the prejudice, bias,
illegality and duplicity in the Chaplain Corps, the Navy has sought to illegally retaliate, punish, harm or otherwise deprive some of these Plaintiffs of their rights and career opportunities.
COUNT 12
L. CONSTRUCTIVE DISCHARGE OF CERTAIN PLAINTIFFS 106. The allegations in paragraphs 1 through 105 above are incorporated herein by reference as though pleaded in full. 107. The Navy has used the realities of the promotion and separation process to make working conditions intolerable for many
of these Plaintiffs and other non-liturgical chaplains who have not been selected for promotion so that they would be driven out of the Navy or otherwise be left with no reasonable choice except to leave the active Navy or retire.
COUNT 13
M. VIOLATION OF THE RELIGIOUS FREEDOM RESTORATION ACT 108. The allegations in paragraphs 1 through 107 above are incorporated herein by reference as though pleaded in full. 109. The Navy’s above challenged actions illegally burden the religious rights of non-liturgical Christian chaplains and Naval
personnel without a substantial government purpose in violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000-bb, et seq.
COUNT 14
N. DECLARATORY RELIEF PURSUANT TO 28 U.S.C.§§ 2201 AND 2202 110. The allegations in paragraphs 1 through 109 above are incorporated herein by reference as though pleaded in full. 111. There is a bona fide dispute between the Plaintiffs and the Navy concerning whether the above challenged Navy policies
violate the Constitution’s First Amendment’s Establishment, Free Exercise and Free Speech clauses and the Fifth

Amendment’s due process (equal protection) clause, the Civil Rights Act, the Religious Freedom Restoration Act, and the DOD and Navy’s own regulations.
112. Pursuant to 28 U.S.C. §§ 2201 and 2202, this Court may declare the rights of a party in an actual case and controversy. Plaintiffs seek such a declaration.

COUNT 15
O. A PERMANENT INJUNCTION IS APPROPRIATE UNDER THE CIRCUMSTANCES
113. The allegations in paragraphs 1 through 112 above are incorporated herein-by reference as though pleaded in full.
114. The Plaintiffs have suffered, are suffering and will continue to suffer immediate, severe, and irreparable injury by virtue of the Navy’s acts, policies and practices as set forth herein.
115. Unless restrained by this Court, the Navy’s future violation of the Plaintiffs’ fundamental rights guaranteed by the Constitution’s First and Fifth Amendments, the Civil Rights Act, the Religious Freedom Restoration Act and the Navy’s own.regulations is an absolute certainty based on the Navy’s long record and pattern of abuse.
116. The Plaintiffs and the class have no plain; adequate, or complete remedy at law to address the Navy’s violations of Plaintiffs’ constitutional and statutory rights and the Navy’s failure to follow its own and DOD promotion policies. This suit for Injunctive and Declaratory relief is their only means of securing complete and adequate relief. No other remedy would offer the Plaintiffs and the class substantial and complete protection from continuation of the Navy’s unlawful and unconstitutional acts, policies and practices.
117. As Plaintiffs do not have an adequate remedy at law, they and on behalf of the class seek injunctive relief against the Navy, ordering it and its personnel to do the following, as detailed below in the prayer for relief.

VIII. PRAYER FOR RELIEF WHEREFORE, Plaintiffs prays for a declaration, injunction and judgment against the Defendants as follows:

A. DECLARATORY RELIEF
Plaintiffs requests that this Court render a Declaratory Judgment that: 1. The following Navy policies and practices are unconstitutional as applied and suppress the Plaintiffs’ and the class’ fundamental rights secured by the First and Fifth Amendments to the United States Constitution, and that these policies also violate federal Civil Rights laws, the Religious Freedom Restoration Act, and DOD and Navy regulations:

a.

The “Third’s Policy” and its subsequent evolution or Rules which distribute chaplain allocations between select faith

groups or denominations without regard to the Navy’s religious needs as evidenced by it religious demographics.

b.

The Navy’s policies of: i) placing more than one chaplain on chaplain promotion selection board and, ii) allowing the

Chief of Chaplains to determine chaplain promotion board or Selective Early Retirement Board members.

c.

The Navy’s policy of identifying the faith group of each chaplain being considered by a promotion board or Selective

Early Retirement Board.

d.

The Navy’s hostility to and suppression of non-liturgical alternatives to a liturgical General Protestant service and/or

other religious education services, e.g., Sunday School, and the Navy’s concomitant endorsement and establishment of an

official liturgical General Protestant service and religious education.

e.

The establishment of systems and rating chains in which chaplains normally rate other chaplains of the same or

different faith groups and which have no independent safeguards or provisions to: i) insure religious neutrality in ratings or

assignments; or, ii) established criteria to insure denominational considerations or prejudice do not enter into the evaluation.

2.

The Navy’s policy of treating liturgical chaplains differently than non-liturgical, chaplains in matters of discipline and

career opportunity, e.g., unequal opportunity for civil education constitutes unconstitutional government endorsement on one

hand and hostility to the Plaintiffs and their class on the other.

3.

The dominance of the Navy’s senior ranks and key billets by liturgical Protestant chaplains, out of all proportion to

their actual percentages in the Navy, and the concomitant absence of appropriate numbers of non-liturgical Protestant chaplains

in those same ranks and billets is:

a. The result of the Navy’s illegal religious discrimination and bias.

b. An illegal endorsement of the liturgical Protestant tradition.

c. A violation of the First Amendment.

d. An unconstitutional religious patronage system

4.

The Navy’s policy and practice of favoring certain religious denominations and discriminating against others in

promotion, retention and key billeting decisions, has resulted in an unconstitutional religious test and endorsement of religion,

and illegal discrimination in violation of the First and Fifth Amendments, 42 U.S.C. § 1981 and 42 U.S.C. § 2000-bb.

5.

The Navy chaplain selection boards for Lt. Commander through Captain for FYs 1992 through 2001 have been

improperly biased with religious discrimination, and that Plaintiffs and members of the class have been unlawfully denied a

fair opportunity for promotion in violation of the Constitution, federal statutes, and DOD and Navy regulations; and that the

results of such promotion boards are void and the Navy’s personnel actions in response to those boards are ultra vires.

6.

The Navy’s Selective Early Retirement Boards for chaplains have been permeated by religious bias and/or conducted

and administered in an unconstitutional manner in violation of the First and Fifth Amendments and the Religious Freedom

Restoration Act.

7.

The Navy’s policy of bringing former Navy line or Marine officers into the Chaplain Corps after they have met the

educational and other requirements for chaplains and then not considering their prior fitness reports as indicative of their past

performance and future potential, thus subjecting them to being passed over as non-competitive with their chaplain peers is

without any rational basis and a cover for religious discrimination.

B. Injunctive Relief

Plaintiffs do not have an adequate remedy at law, so they and on behalf of the class seek injunctive relief against the Navy,-

ordering the Defendants, their agents and employees be enjoined from:

1.

Further and future discrimination in promotion, career development and duty assignment decisions against non-

liturgical Christian chaplains based on their faith group and religious beliefs.

2.

Considering or displaying a chaplain’s denomination or faith group when he or she is being considered by chaplain

promotion selection boards.

3.

Applying illegal quotas to chaplains being considered for promotion, retention, career development and duty

assignment decisions in violation of the Fifth Amendment’s Due Process and Equal Protection provisions.

4.

Further and future interference in any manner.with the fundamental right to Free Exercise of religion by non-liturgical

Christian chaplains and Navy personnel, including access to chapel and other religious and religious education facilities.

5.

Further and future interfering in any manner with non-liturgical Christian chaplains’ fundamental Free Speech rights

including the religious content and viewpoint of their speech.8

6.

Having more than one chaplain participate on chaplain promotion boards or Selective Early Retirement Boards and

allowing the Chief of Chaplains to have a role in deciding who that chaplain is, and having the Chief or the Deputy Chief serve

as president of a chaplain promotion board.

7.

Identifying the faith group of any chaplain being considered for the Selective Early Retirement Program or other

personnel management or career development program except where such identification is needed to further the Free Exercise

interests of Navy personnel based on actual and relevant Navy demographics.

8.

Limiting Protestant services to a “liturgical General Protestant” service when non-liturgical Christians are a majority

of the relevant community.

9.

Restricting or denying Navy facilities for non-liturgical services or other religious activities where a non-liturgical

chaplain (or authorized Lay Leader) is present and there are non-liturgical Navy personnel also present.

10. Having chaplains rate other chaplains, except in exceptional cases based on operational necessity, and only then where there are safeguards to insure that denominational or religious neutrality is maintained and there are established objective criteria for evaluation.

11. Treating non-liturgical chaplains differently than liturgical chaplains in matters of administration, military justice or discipline.

12. Bringing reservists to active duty without a recorded justification as to need based on meeting religious free exercise needs as reflected in the Navy’s religious demographics.

13. Subjecting former Navy line and Marine officers to non-selection for promotion by failure to consider their prior records and experience as indicators of past performance and future potential for selection for promotion.

C. AN ORDER
Plaintiffs request that the Court issue and order requiring the Navy to: 1. Eliminate all vestiges of its past religious bias and discrimination in selecting chaplains for promotion and career assignments. For chaplain promotion selection boards, this includes:
a. Removal of all reference to a chaplain’s faith group or denomination in the selection process unless required to remedy past discrimination or insure that the free exercise needs of the Navy are met.
b. Allow only one chaplain to participate on such boards.

c. Insure that the one chaplain board member is chosen by a neutral system in a religiously neutral manner by Navy officials other than chaplains.
d. Provide a system of checks and balances to insure that religion, faith group or denomination does not affect the promotion or career process except to the extent necessary to insure that the Navy’s free exercise needs are met.
2. Eliminate all vestiges of religious quotas or categories in the promotion process and establish procedures to ensure that faith group is not a factor unless linked to remedying past discrimination or meeting free exercise needs.
3. Take all necessary and affirmative actions to immediately:
a. Bring the Navy Chaplain Corps, including its current rank structure, into line with the Navy’s religious demographics and;
b. Adjust and fill Navy Chaplain Corps’ key billets in a manner that is religiously non-discriminatory but corrects the current disparity between Chaplain Corps and actual Navy religious demographics and insures that chaplain career assignments are made in a non-discriminatory manner that meets the religious needs of the service.
4. Energetically and effectively investigate all allegations of religious prejudice by senior chaplains in rating non-liturgical Christian chaplains. Where actual prejudice is found or bias demonstrated, correct the records and remove the prejudice from the affected non-liturgical Christian chaplain’s official career file.
5. Develop new policies and guidelines that:
a. Provide approval and support for alternative non-liturgical services that meet the needs of the Navy’s non-liturgical religious community at Navy installations, posts, ships and facilities and;
b. Insure that such services receive priority or become the General Protestant service where non-liturgicals constitute a majority at the installation, base or facility.
c. Correct the Chaplains Corps bias against non-liturgical worship, beliefs and chaplains.
6. Develop a system to insure that the above reforms are working and effective.
7. Develop a system to officially record the religious preference of all Navy personnel (The Navy does not now record the religious preference of its officers nor does it recognize Charismatics as a faith group or tradition).
8. Issue the necessary orders voiding all adverse personnel actions flowing from the Thirds Policy and its progeny and the unconstitutional promotion and Selective Early Retirement Boards described herein, including but not limited to separations, and take other action to remedy the results of the Navy’s illegal activities described herein.
9. Provide instructions to promotion boards that in considering former Navy, Marine or other military officers who have been commissioned in the Chaplain Corps after such service, their prior service and fitness reports shall be considered positively in the promotion process and that they shall not be penalized in the selection process because of such prior service.
D. Attorneys’ Fees and Other Relief 1. That this Court award Plaintiffs the reasonable costs and expenses of this action, including attorneys’ fees in accordance
with the Equal Access to Justice Act, 28 U.S.C. § 2412; the Civil Rights Act, 42 U.S.C. § 1988; the Religious Freedom Restoration Act, 42 U.S.C. § 2000-bb; class action case law and/or any other applicable statue or rule of law or equity. 2. That this Court:

a. Retain jurisdiction of this matter for the purposes of enforcing the Court’s orders;
b. Appoint a monitor or special master to monitor the Navy’s compliance until such time as the Court is satisfied that the violations and injuries challenged herein have been satisfactorily remedied and;
c. Require the Navy to provide periodic progress reports as to its progress in complying with B and C above.

DATED: September 5, 2000 Respectfully submitted, <<signature>> Arthur A. Schulcz, Sr. Counsel for the Plaintiffs D.C. Bar No. 453502 2521 Drexel Street Vienna, VA 22180 703-645-4010

Footnotes

1

Definitions are provided in Section IV, paragraph 7 infra.

2

“Read into every federal statute of limitations *** is the equitable doctrine that in the case of defendant’s fraud or deliberate

concealment of material facts relating to his wrongdoing, time does not begin to run until plaintiff discovers or by reasonable

diligence could have discovered, the basis of the lawsuit.” Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C. Cir. 1977).

3

The Navy uses the term “Special Worship” to categorize and denote a small number of Christian and non-Christian faith groups

which have unique or special needs for their worship and religious practices. This includes, Jewish, Seventh Day Adventists,

Christian Science, Later Day Saints (Mormons), Moslems, Hindu and other religions.

4

Almost every church has some “order” to its worship, but for these Protestant denominations there is no worship service without the

prescribed liturgy. There may be other liturgical denominations, but the ones identified here commonly recognized as such by the

Navy, are the largest and most well known.

5

The Navy supplies chaplains to both the Navy and Marine Corps.

6

It would be understandable if the Navy’s reservation of a promotion board seat for a large denomination was based on a policy to

make sure that the religious needs of that denomination were respected. However, the largest Protestant faith group is Baptist, close

to the population of the Catholics, see Exhibit 3, but no seat is reserved for a Baptist, a low church, non-liturgical denomination.

7

See note 2 supra.

8

Plaintiffs recognize that all rights have limits and the First Amendment does not protect religious practices that are hostile to the

Constitution or the rule of law. E.g., United States v. Reynolds, 98 U.S. 145, 25 L.Ed. 244 (1878); and Davis v. Beason, 133 U.S.

333, 10 S.Ct. 299, 33 L.Ed. 637 (1890) (First Amendment did not allow Mormon’s to practice polygamy or shield them from

prosecution for violation of anti-polygamy laws). These are not issues in this case.

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

)

IN RE: NAVY CHAPLAINCY

)

)

----------------------------~>

Case No. 1:07-mc-269 (GK)

MEMORANDUM OPINION

Plaintiffs, 65 current and former nonliturgical Protestant

chaplains in the United States Navy, their endorsing agencies,

and a fellowship of non-denominational Christian evangelical

churches ("PlaintiffS'") , bring this consolidated action against

the Department of the Navy and several of its officials

("Defendants") . Plaintiffs allege that Defendants discriminated

against non-liturgical Protestant chaplains on the basis of

religion, maintained a culture of denominational favoritism in

the Navy, and infringed on their free exercise and free speech

rights.

This matter is before the Court on Plaintiffs' Motion for

Class Certification [Dkt. No. 147] . Upon consideration of the

Motion, Opposition [Dkt. No. 156] , Reply [Dkt. No. 160] , Sur-

Reply [Dkt. No. 170], Sur-Sur-Reply [Dkt. No. 178], and the

entire record herein, and for the reasons set forth below,

Plaintiffs' Motion shall be denied.

I .

BACKGROUND1

A. The Navy Chaplain Corps

The Navy employs a corps of chaplains ("Chaplain Corps" or

"CHC") to meet the religious needs of its members. Chaplains

provide religious education, counseling, and support to sailors

and Marines and advise commanders on religious, moral, and

ethical issues. In re England, 375 F. 3d 1169, 1171 (D.C. Cir.

2004) (citations omitted). The role of a chaplain "within the

service is 'unique,' involving simultaneous service as clergy or

a 'professional representative[]' of a particular religious

denomination and as a commissioned naval officer."

Id.

(citations omitted) To serve these dual roles, chaplains must

have a graduate level theology degree or equivalent, meet the

physical and educational requirements applicable to all

commissioned officers, and be endorsed by an endorsing agency as

qualified to represent a particular faith group. Id. at 1171-

72.

There are over 100 faith groups recognized by the

Department of Defense, which the Navy has grouped into four

"faith group categories" for purposes of organizing the Chaplain

Corps: Roman Catholic, Liturgical Protestant, Non-liturgical

1 The Court assumes familiarity with the extensive record of the case, which includes more than twenty written decisions by this Court and the Court of Appeals.
-2-

Protestant, and Special Worship. In re Navy Chaplaincy, 697

F.3d 1171, 1173 (D.C. Cir. 2012) ("In re Navy Chaplaincy I").

The Liturgical Protestant category consists of Protestant

denominations that trace their origins to the Protestant

Reformation, practice infant baptism, and follow a prescribed

liturgy; it includes Lutheran, Episcopal, Methodist, and

Presbyterian faiths.

In re England, 375 F.3d at 1172;

Consolidated Complaint ("Consol. Compl.") ~ 6(b) [Dkt. No. 134].

The Non-liturgical Protestant category is composed of Protestant

denominations that baptize at the "age of reason" and do not

follow a formal liturgy; it includes Baptist, Evangelical,

Pentecostal, Bible Church, and Charismatic faiths.

In re

England, 375 F.3d at 1172; Consol. Compl. ~ 6(c). The Special

Worship category encompasses all denominations not covered by

the other categories; it includes Jewish, Hindu, Buddhist,

Muslim, Jehovah's Witness, Christian Science, Mormon, and

Unitarian faiths.

Chaplaincy of Full Gospel Churches v.

England, 454 F.3d 290, 295 n.3 (D.C. Cir. 2006); Consol. Compl.

~ 6 n.5.

In order to maintain the requisite number of chaplains for

all ranks (what the Navy refers to as "authorized end

strength"), the Chaplain Corps creates an annual "accessions

plan" setting forth the number of officers it can bring on

-3-

active duty that fiscal year. Declaration of Captain Gene P.

Theriot, CHC, USN ("Theriot Decl . " ) ~ 2 [Dkt . No. 2 9- 6] ; see

also SECNAVINST 1120.4A(5). The term "accession" refers to the

process of bringing a qualified individual into the Chaplain

Corps as a commissioned officer. Theriot Decl. ~ 2. Chaplain

Corps accessions are drawn primarily from the civilian

population, but also from the reserve community, Chaplain

Candidate Program, and inter-service transfers. Id.; see also

Consol. Compl. ~ 44(c).

Chaplain applications are reviewed by a "Chaplain

Appointment Recall and Eligibility Advisory Group" or what is

commonly referred to as a "CARE" board. Theriot Decl. ~ 3. The

CARE board reviews chaplain applications and recommends certain

applicants to the Chief of Chaplains, "giving particular

consideration to: the existence of an ecclesiastical

endorsement, academic performance, graduate theological

education, professional ministry experience, professional

reputation and deportment, interview results and letters of

personal or professional recommendation."

Id.

After

considering the CARE board's recommendations, the Chief of

Chaplains forwards his or her recommendations for accession to

the Commander of the Navy Recruiting Command or the Chief of

Naval Personnel for final approval/disapproval. Id.

-4 -

After accession, chaplains are subject to the same personnel system as other naval officers and, like other officers, are required to be promoted in rank at regular intervals. In re England, 375 F.3d at 1172 (citing 10 U.S.C. § 611 (a)) . If a chaplain is considered but not selected for promotion to the next higher rank, he or she is said to have "failed of selection." Chaplaincy of Full Gospel Churches, 454 F.3d at 293. Two or more failures of selection subject the chaplain to the risk of involuntary separation, known as "selective early retirement." See 10 U.S.C. § 632 (a)- (b). The Navy may, however, elect to continue a chaplain on active duty despite two or more failures of selection if, in its judgment, the needs of the Navy so require. See id. § 632(c) (2).
Each of these decisions regarding a chaplain's career promotion, selective early retirement, and continuation on active duty - is made by a selection board composed of officers superior in rank to the person under consideration. 2 In re England, 375 F.3d at 1172. The selection board process is governed by statute and regulations prescribed by the Secretary of Defense. See 10 U.S.C. §§ 611, 612. Under the current
2 Selection board rules and processes differ according to the rank and type of personnel decision under consideration. See generally 10 U.S.C. §§ 611, 612. Unless otherwise stated, the Court uses the term "selection board" to refer generically to all boards convened for the purpose of considering a change to a naval officer's employment status.
- 5-

regulations, chaplain selection boards are composed of seven members, two of whom are chaplains "nominated without regard to religious affiliation." In re Navy Chaplaincy, 738 F.3d 425, 427 (D.C. Cir. 2013) ("In re Navy Chaplaincy I I I") (citing SECNAVINST 1401.3A, Encl. (1), ~ l.c. (1) (f)) "Either the Chief of Chaplains or one of his two deputies serves as selection board president." Id.
B. Plaintiffs' Claims Plaintiffs are 65 current and former Non-liturgical Protestant chaplains who have collectively served in more than fifty different naval command stations worldwide during the past four decades, 3 their endorsing agencies, and a fellowship of nondenominational Christian evangelical churches. They allege that "the Navy has violated their constitutional and statutory rights by establishing a pervasive culture of hostility, animosity and prejudice towards themselves and their class" manifested by: (1) "a pattern of religious preferences favoring Liturgical Christian chaplains over Non-liturgical Christian chaplains"; (2) "procedures that allow and encourage denominational preferences in the award and denial of government benefits"; and

3 Among other locations, Plaintiffs served in Florida, Italy,

Japan, Guam, South Carolina, North Carolina, Wisconsin,

Virginia, California, Iraq, Lebanon, Georgia, Texas, Maryland,

Washington, the District of Columbia, Texas, New York, Saudi

Arabia, the Aleutian Islands, and Somalia.

See generally

Consol. Compl., Addendum A [Dkt. No. 134].

- 6-

(3) "hostility toward Non-liturgical religious speech and worship practices." Mot. at 5.
They contend that a statistical examination by their expert, Dr. Harald R. Leuba, Ph.D., demonstrates that "[e]very dimension of personnel management which can be illuminated with data shows that Non-liturgical chaplains are disadvantaged by the CHC' [s] policies and practices of religious preference [.]" Consol. Compl. ~ 42.
Plaintiffs' Consolidated Complaint and accompanying "Addendum" collectively exceed 200 pages and contain sixteen separate counts, many of which are not conceptually or legally distinct. For purposes of this Motion, it is sufficient to divide their claims into three overarching categories, as follows. 4
First, they attack a number of facially neutral personnel practices, both current and historical, which they believe have allowed religious bias to infect selection board outcomes and led to discriminatory personnel decisions. Specifically, they challenge: (1) the small size of selection boards; (2) the placement of two chaplains on each board, one of whom is either
4 The Court limits its discussion to the factual and legal contentions at issue in this Motion and, in so doing, analyzes Plaintiffs' claims according to the type of alleged violation, rather than the particular numerical scheme in the Consolidated Complaint.
- 7-

the Chief of Chaplains or one of his or her deputies; and (3)

the use of "secret voting" procedures in which board members

anonymously indicate their degree of confidence in a candidate,

a process Plaintiffs contend "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." In re Navy Chaplaincy III, 738 F.3d at 428; see also

Consol. Compl. ~ 95(c).

Plaintiffs also take issue with the fact that until 2002,

"each selection candidate's three-digit 'faith group identifier'

code

was prominently displayed throughout the selection

board process[,]" which they claim had no purpose other than "to

identify a candidate's faith group to the board" for purposes of

permitting the chaplain board members "to exercise their

individual or faith group prejudice .

, particularly against

Non-liturgical chaplains." Consol. Compl. ~~ 86-87.

Second, Plaintiffs assert that, until 2001, the Navy used

religious quotas or "goals" for apportioning chaplain

opportunities among the faith group categories. Consol. Compl.

~~ 33-35. In particular, they claim that between 1986 and 2001,

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

thirty-five percent of chaplain accessions to Liturgical

Protestants, thirty-five percent to "Non-liturgical faith

-8-

groups," and thirty percent to "Others," including Catholics. Consol. Compl. ~~ 33, 35, 43. They also claim that from 1977 until 2002, Defendants maintained a policy of reserving a set number of selection board seats for Roman Catholic chaplains (the so-called "2 RC" and "1 RC" policies), allegedly for the purpose of "stacking" selection board proceedings in favor of Roman Catholic and Liturgical Protestant chaplains despite their declining numbers in the broader population. Consol . Compl . ~~ 57 (e)- (g)
Third, in the "Addendum" to their Consolidated Complaint, the individual chaplain Plaintiffs advance a laundry list of fact-specific claims asserting equal protection and free exercise violations they purportedly suffered while serving as chaplains in the Navy. These consist of highly individualized allegations that they were, at different points in time and in different command centers: (1) retaliated against, criticized, transferred, or removed from their posts by superior officers based on their faith or the content of their religious teachings; (2) treated differently from Liturgical chaplains with respect to disciplinary issues, promotion, retention, selective early retirement, recall to active duty, fitness reports, and/or employment benefits; (3) made to officiate at Liturgical services; and (4) subjected to general policies that,
- 9-

while not facially discriminatory, disfavored certain aspects of t h e i r worship traditions. See, e.g. , Consol. Compl. ~~ 17 8184 (kk) & Addendum A. 5 They claim that each of the practices, policies, and procedures they challenge enabled or permitted other chaplains to discriminate against them, thereby violating their rights under the First and Fifth Amendments and the Religious Freedom and Restoration Act ( "RFRA") , 42 U.S. C. § 2000bb, et seq. See generally Consol. Compl. ~~ 29-131, 141164.
Plaintiffs seek sweeping injunctive and declaratory relief that would place this Court in an essentially perpetual oversight role with respect to the Navy's personnel practices. Such relief includes both individually-tailored remedies to repair purported damage to each and every chaplain's career, as well as what Plaintiffs refer to as "fundamental reform," requiring the Navy to adjust its hiring and retention policies to match religious representation in the greater population. Mot. at 38. Their requested remedies include, but are not limited to:
5 For example, Plaintiffs allege that some "senior chaplains have insisted on rotating chaplains through . . services instead of assigning a chaplain as a 'pastor' for a congregation, reflecting the liturgical viewpoint that the liturgy satisfies the congregation's worship need, rather than the Non-liturgical view that good biblical preaching, music, and praise and worship comprise the worship experience[.]" Consol. Compl. ~ 150(b).
- 10 -

• A judicial declaration voiding "all personnel actions" made regarding Navy chaplains of any denomination since 1977. Consol. Compl. at 119.
• Reinstatement of separated Non-liturgical chaplains to
active duty "until such time as they have been reviewed by legally constituted boards." Id. at 111.
• An order requiring the Navy to "correct the records and remove the prejudice from the affected Non-liturgical chaplain's official career file, take other necessary actions to make plaintiffs whole, and take corrective action to preclude further incidents of prejudice." Id. at 118.
• "Special compensation" for the named Plaintiffs "for the
expense, stress and hostility they have endured to bring this action[.]" Id. at 120.
• An order invalidating all of the challenged personnel policies and requiring the Navy to "[d]evelop new policies, guidelines, and regulations that [,]" among other things, "officially record the religious preference of all Navy personnel"; "[e]nsure that [Non-liturgical] services receive priority or become the main Christian service when Non-liturgicals constitute a majority"; and adjust the CHC's rank structure to reflect religious preference. Id. at 117-19 (emphasis in original) . 6
• A court-ordered "system of checks and balances" monitoring remedial efforts to ensure that consideration of religious
6 As other courts have noted, there is an inconsistency between Plaintiffs' claim that the Navy is prohibited from considering religion in its personnel decisions and their simultaneous assertion that the Navy is constitutionally required to consider religion in its personnel decisions by developing a system of proportional representation. See Sturm v. U.S. Navy, No. 99-CV2272, slip op. at 7 (S.D. Cal. June 18, 2002) ("Sturm Mem. Op. of June 18, 2002") (noting inconsistency between argument that "the First Amendment does not permit the Government to discriminate between denominations" and simultaneous demand "that Non-liturgical Protestants be picked over Liturgical Protestants and Roman Catholics because they purportedly satisfy a higher percentage of service members' religious needs").
- 11 -

considerations is "effectively eliminated" from promotions and career processes, and that future "complaints of religious discrimination are promptly investigated and addressed." Id. at 117-18.

C. Defendants' Response to Plaintiffs' Claims

Defendants deny Plaintiffs' allegations in their entirety.

First, they deny that any of the alleged "quota" systems

(the so-called "Thirds," "1 RC" and "2 RC" Policies) ever

existed. They point out that the Navy's rules specifically

require promotion board members to "be nominated without regard

to religious affiliation" and prohibit "[e] xclusion from board

membership by reason of gender, race, ethnic origin, or

religious affiliation [.]" Defs.' Mot. for P. Summ. J. at 5 [Dkt. No. 46-1] (citations omitted) (citing SECNAVINST 1401.3 ~

4(a) & Encl. 1 ~ 1(c) (1) (e)). They point out further that the

Chaplain Corps' personnel policies and Guiding Principles, on

which chaplains receive yearly training, expressly prohibit

religious discrimination of any type and require that personnel

decisions be based on merit alone.

Opp'n at 24 (citing

SECNAVINST 5350.16A

7) .

In accordance with these

requirements, Defendants maintain that "[i] ndividual accession

decisions are made on the basis of qualifications alone" and

that the Navy has consistently endeavored to "access[] the best-

qualified candidates irrespective of faith group." Defs.' Mot.

for P. Summ. J. at 23, 24 (citations omitted). - 12 -

Second, Defendants claim that, consistent with its policy

of nondiscrimination, the Navy has enacted numerous safeguards

to prevent discrimination from infecting selection proceedings

and to "protect the rights of all to worship or not worship as

they choose." Opp'n at 24 (citing SECNAVINST 5351.1, encl. 4).

These safeguards include requiring selection board members to

"take an oath to perform [their] duties without prejudice or

partiality"; instructing them to "ensure that officers are not

disadvantaged because of

religion"; and imposing on them a

duty to report any belief that board results have been tainted

by improper influence or bias. Opp' n at 24 & Ex. 6 (Jan. 23 ,

2013, Decl. of Commander Jeffrey J. Klinger, USN) ("Klinger

Decl.") •• 26, 27, 29, 59 [Dkt. No. 156-6]; see also Defs'. Mot.

for P. Summ. J. at 4 (citing 10 U.S.C. § 613).

Third, Defendants challenge the statistical findings of

Plaintiffs' expert, Dr. Leuba, in their entirety. See, e.g.,

Opp ' n at 2 0 - 23 , 2 6 . 7 They assert that from 1988 until the

present, "Non-liturgicals have steadily grown to constitute the

largest of the four Faith Group Categories recognized by the

7 Defendants retained their own expert, Dr. Bernard R. Siskin, Ph.D., whose analysis Plaintiffs have moved to strike under Fed. R. Evid. 702 and 403. See Opp'n, Ex. 2 (Statistical Analysis of Promotions and Early Retirement Selections in the United States Navy Chaplain Corps, Supplemental Report) [Dkt. No. 156-2]; Pls.' Renewed Mot. to Strike [Dkt. No. 169]. The Court does not rely on Dr. Siskin's report to resolve the pending Motion.
- 13 -

Navy for Chaplain Corps personnel management purposes, recently becoming the outright majority of all active duty Chaplains, both overall and at every rank save Rear Admiral." Opp'n at 4.
They claim that "since FY 2002, Non-liturgicals have accessed in greater numbers than any other faith group category [,]" and now constitute 59. 9 percent of all Chaplain Corps accessions, "compared to Liturgical Protestants at 26. 7 percent, Roman Catholics at 7. 2 percent, and Special Worship candidates at 6.3 percent of all accessions, respectively." Id.; see also Decl. of Veronica Berto dated May 20, 2011 ("May 20, 2011, Berto Decl."), Exhibit C [Dkt. No. 156-8]. Moreover, they claim that this representation of Non-liturgical chaplains exceeds "by a significant margin" the overall percentage of Navy personnel that self-identify as belonging to a faith group category within the Non-liturgical category." Opp' n · at 26- 27 (citing May 20, 2011, Berto Decl., Exs. A & B) . 8
Fourth and finally, and based on the foregoing, Defendants argue that, "[a] t its heart, this consolidated litigation is really a collection of individual employment disputes" . in which
8 Specifically, Defendants' analysis found that "Navy personnel who self-identified as belonging to a faith group that would fall within the Non-liturgical Faith Group Category constituted only 13 percent of the Navy as of March 31, 2011[,]" whereas "Non-liturgicals constituted 53 percent of the Chaplain Corps as of FY 2010." Opp'n at 26-27 (citing May 20, 2011, Berto Decl., Exs. A & B).
- 14 -

the proposed class members have only "two principal things in

common: (1) they belong to Christian faith groups categorized by

the Navy as Non-liturgical for personnel management purposes;

and (2) at some point, each sustained one or more adverse

personnel decisions, such as failure to promote to the next rank

or selection for early retirement." Defs.' P. Mot. to Dismiss

at 1 [Dkt. No. 2 9] 0

"Beyond that," Defendants argue,

Plaintiffs' "individual cases diverge in numerous ways,

depending on when and where they served, what their duties were,

to whom they reported and by whom they were supervised, and

multiple other factors." Id. at 1-2.

D. Procedural Background

This consolidated case is composed of three cases filed by

the same counsel: Chaplaincy of Full Gospel Churches v. England,

Civ. No. 99-2945 ("CFGC"); Adair v. England, Civ. No. 00-566

("Adair"); and Gibson v. Dep't of Navy, Civ. No. 06-1696

("Gibson"). CFGC and Adair were filed in this Court on November

5, 1999, and March 17, 2000, respectively, and were consolidated

for pretrial purposes on September 26, 2 000. [Adair Dkt. No.

21] 0 Gibson was filed in the Northern District of Florida on

April 28, 2006, and was subsequently transferred to this

District pursuant to 28 U.S.C. § 1404. See Mem. Order of August

17, 2006, at 1 [Gibson Dkt. No. 1]. On June 18, 2007, the Court

- 15 -

consolidated all three actions, concluding that they raise "substantially similar constitutional challenges to the Navy Chaplaincy program." Mem. Order of June 18, 2007, at 4 [Dkt. No. 11].
On March 26, 2002, the Adair Plaintiffs filed their first Motion for Class Certification, which the Court granted on August 19, 2002 [Dkt. No. 69]. See Adair v. England, 209 F.R.D. 5 (D.D.C. 2002). Four years later, the Adair Plaintiffs moved to vacate the 2002 Class Certification Order, claiming that, as a result of recent "job changes" and other personal circumstances, "they [we]re no longer willing or able to represent or to assume the burdens inherent in representing the class." Pls.' Mot. to Vacate the Aug. 19, 2002, Order Granting Pls.' Mot. to Certify a Class, at 2 [Adair Dkt. No. 156] . On May 30, 2006, the Court granted this Motion.
The parties engaged in more than five years of active discovery between 2002 and 2009, interspersed with collateral litigation and three interlocutory appeals to our Court of Appeals. In 2012, Judge Ricardo Urbina, who had been assigned to this case, retired and it was reassigned to this Court. At the Court's request, on October 3, 2012, Plaintiffs filed a Consolidated Complaint [Dkt. No. 134] comprised of all of the remaining claims at issue.
- 16 -

On December 4, 2 012, Plaintiffs filed the instant renewed

Motion for Class Certification ("Mot.") [Dkt. No. 147]. On

January 23, 2013, Defendants filed their Opposition ("Opp'n")

[Dkt. No. 156] . On February 25, 2013, Plaintiffs filed their

Reply ("Reply") [Dkt. No. 160]. With permission of the Court,

on March 27, 2013, Defendants filed a Sur-Reply ("Sur-Reply")

[Dkt. No. 170], and on April 15, 2013, Plaintiffs also filed a

Sur-Reply ("Sur-Sur-Reply") [Dkt. No. 178].

II. Subject Matter Jurisdiction Over Plaintiffs' Challenge to the "Thirds Policy"

Before reaching the class certification issue, the Court

must address a threshold issue left undecided in one of its

prior decisions: whether it has subject matter jurisdiction to consider Plaintiffs' challenge to the alleged "Thirds Policy." 9

The parties dispute whether the Thirds Policy ever existed,

but it is undisputed that it has not existed since 2001. See Consol. Compl. ~ 35(a)-(b); Pls.' Mot. for P. Summ. J. at 4-5

(policy was "abandoned" in 2001) [Dkt. No. 55]

Our Court of

9 The Court has an affirmative duty to ensure that it is acting

within its jurisdictional limits and may raise the issue sua

sponte at any time. See Fed. R. Civ. P. 12 (h) (3) ("If the

[district] court determines at any time that it lacks subject-

matter jurisdiction, the court must dismiss the action."); Evans

v. Suter, No. 09-5242, 2010 WL 1632902, at *1 (D.C. Cir. Apr. 2,

2 010) ("[A] district court may dismiss

sua sponte

when, as here, it is evident that the court lacks subject-matter

jurisdiction[.]").

- 17 -

Appeals has therefore recognized that, "because the Navy already eliminated the Thirds Policy," and there is no evidence "the Navy will reinstitute it, any injunction or order declaring it illegal would accomplish nothing - amounting to exactly the type of advisory opinion Article III prohibits." Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) ("Larsen I").
In 2008, Defendants moved to dismiss the Thirds Policy claim, arguing that, under Larsen I, any prospective challenge to the Policy is moot. See Defs.' P. Mot. to Dismiss at 21-22 [Dkt . No. 29-1] . They also argued that Plaintiffs lack standing to challenge the Policy because "each Plaintiff successfully accessed into the Chaplain Corps" and therefore cannot show "that the Navy's past or present accession policies caused them any injury in fact, a requirement of standing." In re Navy Chaplaincy, 850 F. Supp. 2d 86, 109 (D. D.C. 2012) ("In re Navy Chaplaincy II") (citation and quotation marks omitted); see also Defs.' P. Mot. to Dismiss at 19-22.
In response, Plaintiffs did not argue that they suffered a direct injury as a result of the alleged Thirds Policy (presumably because it is undisputed that they all successfully accessed into the Chaplain Corps) , but asserted instead that the Policy resulted in an underrepresentation of Non-liturgical Protestants in the Chaplain Corps that limited their ability to
- 18 -

meet their communities' religious needs and increased their

workload. See Pls.' Opp'n to Defs.' P. Mot. to Dismiss at 29-30

[Dkt . No. 33] .

In 2012, the Court addressed these arguments. With respect

to standing, it noted that Plaintiffs alleged that the Thirds

Policy had limited their ability to meet their communities'

religious needs and increased their workload.

The Court

concluded that this "pleaded factual content, accepted as true,

allow [s] the court to draw the reasonable inference that the

plaintiff [s] suffered an injury in fact to support standing."

In re Navy Chaplaincy II, 850 F. Supp. 2d at 110. Given the

procedural pOsture of the case, however, the Court did not reach

whether Plaintiffs satisfied the other elements of standing.

Id. at 109-110 (quoting Sierra Club v. EPA, 292 F.3d 895, 898-99

(D.C. Cir. 2002)).

With respect to mootness, the Court noted that the Court of

Appeals panel in Larsen I had recently recalled its mandate due

to the discovery of new evidence allegedly suggesting the Navy

had reinstituted the Thirds Policy. Consequently, the Court

denied Defendants' mootness challenge "without prejudice" to

future consideration "after the court has ruled on the remanded

Larsen matter." Id. at 110 n.11.

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The district court in Larsen I has now ruled on the

mootness issue. It determined that the challenge to the Thirds

Policy remained moot because the newly presented evidence did

not "indicate that the Thirds Policy will likely be reenacted."

Larsen v. U.S. Navy, 887 F. Supp. 2d 247, 258 (D.D.C. 2012)

("Larsen II"). In this case, too, there is no evidence the Navy
will reinstate the alleged Thirds Policy. 1° Consequently, as in

Larsen I, any forward looking or declaratory relief that this

Court might grant with respect to the alleged Thirds Policy

would "accomplish nothing - amounting to exactly the type of

advisory opinion Article III prohibits." Larsen I, 525 F.3d at

4. Accordingly, Plaintiffs' claim for declaratory and forward-

looking injunctive relief related to the Thirds Policy is moot.

In light of this conclusion, Plaintiffs also cannot

demonstrate standing to challenge the Policy.

They have

10 The evidence of the Thirds Policy consists largely of a single memorandum from Captain D. K. Muchow to the Chief of Chaplains regarding the annual accessions plan for FY 1987 (the "Muchow Memorandum") [Dkt. No. 55-22]. The Muchow Memorandum states that "[f]aith group mix best meets the needs of the naval service when 35 percent of the Chaplain Corps inventory is liturgical, 35 percent non-liturgical and 30 percent other (Roman Catholic, Jewish, Orthodox)." Id. at 1. However, it makes no reference whatsoever to the existence of any formal Thirds Policy and there is no indication that Muchow's assessment of optimal "faith group mix" reflected the views of the CHC as a whole or pertained to accession goals for any year other than FY 1987. At his deposition, Muchow characterized the Memorandum as merely a "snapshot of where we were" in FY 1987. See Dep. Tr. of Donald K. Muchow at 44:18 [Dkt. No. 47-15].
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previously argued that they suffered an Article III injury as a

result of the Thirds Policy because it limited their ability to

meet the religious needs of Non-liturgical service members and

increased their workload.

Even assuming, however, that

Plaintiffs could prove they were required to work harder than

other chaplains as a result of the Policy (as to which there is

negligible evidence), and that such an injury is sufficiently

concrete and particularized to satisfy Article III, Plaintiffs

would still be required to show that it is "likely, as opposed

to merely speculative, that the injury will be redressed by a

favorable decision." Nat'l Envtl. Dev. Ass'n's Clean Air

Project v. EPA, No. 13-1035, 2014 WL 2219065, at *3 (D.C. Cir.

May 30, 2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992)) (quotation marks and ellipses omitted).

There is no indication that Plaintiffs' increased workload

in the past has had any lasting adverse effect. As the District

Court for the Southern District of California held in a related

case, "' [p] ast exposure to illegal conduct does not in itself

show a present case or controversy . . if unaccompanied by any

continuing, present adverse effects. '"

Wilkins v. United

States, No. 99-CV-1579-IEG (LSP), slip op. at 23 (S.D. Cal. June

29, 2005) ("Wilkins Mem. Op. of June 29, 2005") (quoting Renne

- 21 -

v. Geary, 501 U.S. 312, 320-21 (1991)) (emphasis added)); aff'd, 232 F. App'x 710 (9th Cir. 2007).
Furthermore, there is nothing in the record to suggest that the limited declaratory and injunctive remedies available in this Court could provide effective relief for any injuries Plaintiffs sustained in the past as a result of the alleged Thirds Policy. " [W] hile plaintiffs may seek declaratory and injunctive relief, they may not seek damages because the United States has not waived sovereign immunity for monetary relief for unconstitutional acts taken by government employees acting in their official capacities." Leonard v. U.S. Dep't of Def., No. 13-1571, 2014 WL 1689606, at *3 n.2 (D.D.C. Apr. 30, 2014) (citing Clark v. Library of Cong., 750 F.2d 89, 102-03 (D.C. Cir. 1984)). "The government also has not waived sovereign immunity for monetary damages resulting from violations of RFRA." Id. (citing Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 1026 (D.C. Cir. 2006) ("RFRA does not waive the federal government's sovereign immunity for damages.")).
Consequently, if Plaintiffs prevailed, they would be limited to non-monetary relief for any constitutional violations resulting from the Navy's prior use of the alleged Thirds Policy. They have not identified any non-monetary relief that could remedy the fact that they were required to "expend more
- 22 -

effort" than their Liturgical colleagues a decade or more ago. 11
Nor have they identified any other injury related to the alleged
Thirds Policy that the Court could redress through non-monetary
relief. 12
In sum, because Plaintiffs' request for declaratory and
forward-looking relief is moot and the Court is unable to issue
any relief for the only injury they claim to have suffered in
11 Plaintiffs do allege that Non-liturgical chaplains are still underrepresented as a result of the alleged "Thirds Policy" and thus suggest that the Court can provide relief for the fact that they continue to shoulder a heavier workload. See Pls.' Opp'n to Defs.' P. Mot. to Dismiss at 33. But this contention finds no support in the record. As already noted, as of FY 2010, Nonliturgical Protestants made up more than 50 percent of the Chaplain Corps, whereas in 2011, personnel who self-identified as belonging to a Non-liturgical faith group constituted only 13 percent of the Navy. See May 20, 2011, Berto Decl., Exs. A & B.
12 Plaintiffs allege that the Thirds Policy "applied" to recruiting and accessions. See Consol. Compl. ~~ 35(b), 43; see also Decl. of Commander Timothy J. Demy, CHC, USN ("Demy Decl.")
-r4 [Dkt. No. 178-4]. To the extent they suggest it also
applied to other personnel decisions, see Consol. Compl. ~ 43, they have presented no evidence that it did, whereas Defendants have submitted an affidavit clearly stating that "[t]here [we]re no express or implied quotas for promotion based on faith" during the relevant time period. Affidavit of R.W. Duke at 4, Wilkins v. Lehman, No. 85-3031 (S.D. Cal. Jan. 16, 1986) ("Duke Aff. ") [Dkt. No. 172 -3] . Similarly, a promotion board precept dated June 23, 1987, states that boards must select officers who "giving due consideration to the needs of the Navy for officers with particular skills, considers best qualified for promotion," a standard to "be applied uniformly" to all candidates. FY 1988 Promotion Board Precept at 2 [Dkt. No. 160-8]. There is simply no evidence that the alleged Thirds Policy, or any other religious quotas or goals, impacted promotion, retention, or selective early retirement decisions.
- 23 -

the past, Plaintiffs have not established the existence of a "live controversy" pertaining to the Thirds Policy. Therefore, the Court is without jurisdiction to consider it. See Sturm Mem. Op. of June 18, 2002, at 6 ("While Plaintiff may take issue with Defendant's former accession practices, ' [w] e are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong.'") (quoting Spencer v. Kemna, 523 U.S. 1, 18 (1998)), aff'd, 76 F. App'x 833 (9th Cir. 2003)).
For these reasons, Plaintiffs' claim related to the Thirds Policy shall be dismissed for lack of subject matter jurisdiction. III. CLASS CERTIFICATION
The Court will now consider Plaintiffs' Motion for Class Certification. Plaintiffs seek to certify a class of up to 2, 500 "present and former Non-liturgical Navy chaplains, active duty and Reserve, who were in the Navy or have served in the Navy" between 1976 and the present. Mot. at 3, 7. The proposed class includes, but is not limited to: (1) chaplains whose "careers have been injured, terminated or otherwise adversely affected by the Navy's and the CHC's unlawful bias and prejudice against Non-liturgical chaplains"; (2) chaplains who "saw or experienced the Navy's Non-liturgical bias and left active duty
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or retired early rather than endure that bias and prejudice";

and (3) chaplains "who have not yet personally suffered career

injury as a result of the practices and policies challenged here

because manifestation of the injury has been delayed [.]" Mot.

at 3-5.

A. Legal Standard

"The class action is an exception to the usual rule that

litigation is conducted by and on behalf of the individual named

parties only." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

2550 (2011) (citation and quotation marks omitted). Class

certification is governed by Rule 23 of the Federal Rules of

Civil Procedure. There are two components to the certification

inquiry: first, each of the four elements of Rule 23(a) must be

met; second, certification of the proposed class must be

appropriate under at least one of the three categories

enumerated in Rule 23 (b) . Richards v. Delta Air Lines, Inc.,

453 F.3d 525, 529 (D.C. Cir. 2006).

The proponent of class certification must prove by a

preponderance of the evidence that the requirements of Rule 23

are satisfied. Wal-Mart, 131 S. Ct. at 2548.

The Supreme

Court has stated that "Rule 23 does not set forth a mere

pleading standard"; rather, " [a] party seeking class

certification must affirmatively demonstrate [its] compliance

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with the Rule - that is, [it] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Id. at 2551 (emphasis in original)
The trial court must conduct "a rigorous analysis" to ensure that the requirements of Rule 23 have been met. Id. This inquiry may overlap with an appraisal of the merits, for "it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question [.]" Id. (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, (1982)). Rule 23 is not, however, a "license to engage in freeranging merits inquiries [,]" and merits questions may only be considered to the extent that "they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194-95 (2013).
B. Rule 23 (a) Under Rule 23 (a) , a plaintiff seeking certification must demonstrate that: (1) the class is so numerous that joinder of all members is impractical; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and
- 26 -

adequately protect the interests of the class. Fed. R. Civ. P.

23 (a) . These four requirements are commonly referred to as

numerosity,

commonality,

typicality,

and adequacy of

representation, respectively.

The parties do not dispute that the numerosity requirement

is satisfied; therefore, the Court confines its analysis to a

discussion of the other three requirements.

1. Commonality

Rule 23 (a) (2) requires the existence of "questions of law

or fact common to the class." Fed. R. Civ. P. 23 (a) (2). This

requirement was the basis of the Supreme Court's decision in

Wal-Mart. Wal-Mart involved a proposed class of current and

former female employees who alleged that Wal-Mart had a "strong

and uniform 'corporate culture'" that "permit [ted] bias against

women to infect, perhaps subconsciously, the discretionary

decisionmaking of each one of Wal-Mart's thousands of managers -

thereby making every woman at the company the victim of one

common discriminatory practice." Wal-Mart, 131 S. Ct. at 2548.

The Supreme Court rejected this theory as a basis for

commonality. It explained that the inquiry under Rule 23(a) (2)

is not whether class members "have all suffered a violation of

the same provision of law [,]" but rather whether "a classwide

proceeding [will] generate common answers apt to drive the

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resolution of the litigation." Id. at 2551 (emphasis added and

citation and internal punctuation omitted) . In other words, the

class members' claims must depend on a "common contention" that

is "of such a nature that it is capable of classwide resolution

- which means that determination of its truth or falsity will

resolve an issue that is central to the validity of each one of

the claims in one stroke." Id. (citations omitted).

Quoting a prior decision, the Court observed that:

Conceptually, there is a wide gap between (a) an

individual's claim that he [sic] has been denied a

promotion

on discriminatory grounds, and his

[sic] otherwise unsupported allegation that the

company has a policy of discrimination, and (b) the

existence of a class of persons who have suffered the

same injury as that individual, such that the

individual's claim and the class claim will share

common questions of law or fact and that the

individual's claim will be typical of the class

claims.

Id. at 2553 (quoting Falcon, 457 U.S. at 157-58 (quotation

marks omitted)).

The Court acknowledged this gap could

theoretically be bridged by "significant proof" that Wal-Mart

"operated under a general policy of discrimination." Id. It

observed, however, that "Wal-Mart's announced policy forbids sex

discrimination," and consequently, the "only corporate policy

that the plaintiffs' evidence convincingly establishes is Wal-

Mart's 'policy' of allowing discretion by local supervisors over

employment matters." Id. at 2553-54. A policy of local

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discretion, the Court concluded, did not satisfy the commonality

requirement because it "is a policy against having uniform

employment practices[,]" and therefore, "demonstrating the

invalidity of one manager's use of discretion will do nothing to

demonstrate the invalidity of another's." Id. at 2554 (emphasis

in original).

In this case, just as in Walmart, Plaintiffs do not allege

that the Navy ever had an express policy against the advancement

of Non-liturgical Protestants. Instead, they rest their case on

an array of individual anecdotes they contend demonstrate a

"pervasive pattern of religious preference." Yet the theories

of religious discrimination reflected in these individual

anecdotes vary widely.

Some of the Individual Plaintiffs

conclude that they were discriminated against because they

believe themselves to be more qualified than chaplains of

different faiths who fared better in the Chaplain Corps'

personnel system. Others complain of poor fitness reports and

unfavorable work assignments issued by their superiors, which

they blame on interpersonal disputes combined with religious

animosity, retaliation, and/or racial or gender discrimination.

Yet others tell extended narratives of local command officers or

senior chaplains interfering with their ministry efforts,

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prayer, or worship styles for a variety of reasons they attribute to religious hostility. 13
These diverse circumstances and theories of discrimination undermine Plaintiffs' efforts to establish commonality at the outset. See, e.g., Wal-Mart, 131 8. Ct. at 2557 (plaintiffs could not show commonality because they "held a multitude of different jobs, at different levels of Wal-Mart's hierarchy, for variable lengths of time, in 3, 400 stores, sprinkled across 50 states" and were subjected "to a variety of regional policies that all differed"); Garcia v. Johanns, 444 F.3d 625, 632 (D.C. Cir. 2006) ("Establishing commonality for a disparate treatment

13 By way of illustration, one chaplain attributes his non-

selection for promotion to rumors spread about his "stability

and performance" following a referral for psychiatric evaluation

after his "liberal" command Chaplain overheard him telling his

wife that his ministry was "truncated by demonic forces

personified by Chaplains." Addendum A to Consol. Compl. ~ 50.

Four other chaplains stationed in Naples, Italy contend that

they received poor fitness reports from Catholic superior

officers for praying "in Jesus name." Id. ~~ 5, 10, 18, 62-63.

A chaplain stationed in Okinawa, Japan from 1991 until 1993

claims that "his Liturgical Protestant rating chaplain gave him

a poor fitness report" for failing "to support his rater's .

prayer breakfasts" and "preaching that men who call themselves

Christians should live as Christians." Consol. Compl. ~ 184(b).

Another chaplain believes his non-promotion was retaliation by a

Catholic board member who allegedly accused him of "stealing

sheep" after baptizing a woman who asked to be baptized by

immersion. Id. ~ 184(g). Another chaplain resigned after being

investigated by the Navy for sexual harassment but attributes

the investigation to religious discrimination. Addendum A to

Consol. Compl. ~ 3 0. Two Hispanic chaplains claim to have

suffered a combination of religious and racial discrimination.

Id. ~~ 40, 54.

These types of individualized allegations

pervade the Consolidated Complaint.

- 30 -

class is particularly difficult where, as here, multiple decisionmakers with significant local autonomy exist.")
Nevertheless, as our Court of Appeals has emphasized, the commonality requirement is not a predominance requirement and "even a single common question will do." D.L. v. Dist. of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013) (citing Wal-Mart, 131 S. Ct. at 2556). Therefore, the Court shall consider whether Plaintiffs have identified any common issue of law or fact tying their injuries together. 14

14 Plaintiffs argue that the Court's 2002 class certification

decision in Adair, 209 F.R.D. at 10, is the "law of the case,"

thereby governing the Court's analysis on this Motion. Sur-Sur-

Reply at 6. The Adair Class Certification Order was vacated at

Plaintiff's request on May 30, 2006, and is, therefore, no

longer "law of the case." Coalition to End Permanent Congress

v. Runyon, 979 F.2d 219, 221 n.2 (D.C. Cir. 1992) (once vacated,

an opinion is "no longer law of the case") (Silberman, J.,

dissenting). Furthermore, in light of Wal-Mart, many of the

Court's conclusions in Adair are no longer good law. For

example, the Adair decision held that, "[i]n determining whether

to certify a class, the court should not consider the underlying

merits of the plaintiff's claims," and should "accept as true

the allegations set forth in the complaint." Adair, 209 F.R.D.

at 8. Wal-Mart, however, makes clear that "Rule 23 does not set

forth a mere pleading standard" and the "party seeking class

certification must affirmatively demonstrate [its] compliance

with the Rule that is, [it] must be prepared to prove that

there are in fact

common questions of law or fact [.]"

Wal-Mart, 131 S. Ct. at 2551 (emphasis in original). Similarly,

in Adair, the Court based its commonality finding on Plaintiffs'

allegations of "a pervasive pattern" of religious

discrimination. Adair, 209 F.R.D. at 10. In Wal-Mart, however,

the Supreme Court held that such allegations do not satisfy Rule

23(a) (2) unless there is "significant proof" that the defendant

"operated under a general policy of discrimination." Wal-Mart,

131 S. Ct. at 2553. In fact, as our Court of Appeals recently

- 31 -

a. "Culture" of Denominational Favoritism Just as in Wal-Mart, Plaintiffs rely heavily on allegations of a pervasive ~culture of prejudice" in the CHC. Mot. at 16, 37. They argue that the ~common issue in each class member, s individual case is the Navy, s systemic and institutionalized culture of prejudice against Non-liturgical chaplains and the faith groups they represent, and the resulting twin unconstitutional message of favoritism for preferred denominations and prejudice against Plaintiffs, [sic] " Mot. at 39; see also id. at 5, 14, 15, 28, 29, 31. They define ~organizational culture" as a. ~set of common understandings," composed of shared ~values, ,, ~assumptions," and ~beliefs," ~around which action is organized.,, Mot. at 15-16 (citations omitted) Under Wal-Mart, this theory only satisfies the commonality requirement if the Navy,s culture of prejudice is so strong as to suggest that the Chaplain Corps operated under a ~general

observed, ~wal-Mart 's interpretation of Rule 23 (a) (2) has

changed the landscape" of class certification. D. L., 713 F. 3d

at 126-27 (citations omitted).

Con~equently, neither the

Court,s 2002 certification order in Adair nor the other pre-Wal-

Mart commonality cases on which Plaintiffs rely are controlling.

See Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625, 632 (D.C.

Cir. 2010) (noting exception to ~law of the case" doctrine where

there is an ~intervening change in controlling law").

- 32 -

policy" of discrimination. 15 Plaintiffs have not come close to

satisfying this demanding standard.

First, the Navy's guiding documents clearly and

unequivocally seek to promote a culture of tolerance, not bias.

For example, the Chaplain Corps' written "Professional

Standards" expressly state that the Chaplain Corps "is a

religiously impartial governmental organization with no inherent

theology of its own" which exists to "empower individual

chaplains" to accommodate "the religious requirements of

personnel of all faiths." SECNAVINST 5351.1(5). The Standards

further provide that "[i] t is the policy of the CHC to be

equally tolerant of every Service member

and other

authorized persons irrespective of that individual's religious

15 While Plaintiffs bring their discrimination claims under the First and Fifth Amendments, not Title VII as in Wal-Mart, they fail to offer any other viable theory as to how a class-wide determination of "culture" might resolve an issue central to their claims. They do not "allege hostile work environment claims under Title VII[.]" In re Navy Chaplaincy, 850 F. Supp. 2d 86, 116 (D. D.C. 2 012) ("In re Navy Chaplaincy II") . They argue vaguely that the Establishment Clause required Defendants to maintain a "denominationally neutral" culture. Reply at 9. But while they are correct that "[t]he government must be neutral when it comes to competition between sects," Zorach v. Clauson, 343 U.S. 306, 314 (1952) , they cite no authority for the proposition that the Government must go beyond a policy of neutrality to, in fact, achieve a denominationally neutral culture. Consequently, the Court considers Plaintiffs' "culture of prejudice" theory only insofar as it might demonstrate that the Navy operates under a "general policy" of religious discrimination.

- 33 -

beliefs or unbelief" and to endeavor to "accommodate the religious beliefs of all to the fullest possible extent." Id. encl. 2 (2), (5) (emphasis added).
Likewise, the Chaplain Corps' Guiding Principles, which "communicate the values that hold· the CHC together as an institution and serve as a point of reference for chaplains throughout their careers," state that "[w] e seek to understand cultural and religious values that differ from our own" and "believe the right to exercise our faith is best protected when we protect the rights of all to worship or not worship as they choose." Id., encl. 4.
To prove that a "culture of denominational favoritism" nevertheless exists, Plaintiffs rely primarily on affidavits and deposition testimony in which they and other Non-liturgical chaplains describe particular instances of hostile treatment, retaliation, and/or specific local command officers scheming to suppress, take over, or shut down their Non-liturgical services. See generally Addendum A to Consol. Compl.; Reply at 20-22; SurSur Reply at 2-3.
However, Captain Lyman M. Smith, Executive Assistant to the Chief of Navy Chaplains, has submitted a declaration explaining that "[c] ommanding officers at the local level have ultimate responsibility for providing command religious programs" in each
- 34 -

of the "500 separate geographically dispersed duty assignments 11

served by the CHC, and "[n]either the Chief of Chaplains nor the

Chaplain Corps controls the individual command religious

programs which are in place at each duty station. 11 Supp. Smith

Decl. at 2-3 [Dkt. No. 47-19] (citing OPNAVINSTR 1730.1D).

This . decentralized system, combined with clear Guiding

Principles and Professional Standards requiring religious

tolerance and non-discrimination, wholly defeats Plaintiffs'

suggestion that their individual experiences of discrimination

and religious intolerance stem from a "culture of prejudice 11

that is common to the class as a whole. See, e.g., Stastny v.

S. Bell Tel. & Tel. Co., 628 F.2d 267, 279 (4th Cir. 1980)

("Substantial degree of and perhaps almost complete local

autonomy in separate facilities

. cuts against any inference

for class action commonality purposes. 11 ); Garcia v. Veneman, 211

F.R.D. 15, 22 (D.D.C. 2002) (holding in discrimination case that

"[c]ommonality is defeated

by the large numbers and

geographic dispersion of the decision-makers 11 ) 16

Plaintiffs also cite to a declaration submitted by Captain

Larry H. Ellis, who refers, without elaboration, to a general

"perception11 in the mid-1990s "among non-liturgical chaplains

16

Indeed, Plaintiffs themselves acknowledge that their

individual experiences do not portray a "culture11 so much as "a

series of individual incidents. 11 Mot. at 16.

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that the Chaplain Corps was biased toward liturgical denominations and against non-liturgical chaplains. 11 Aff. of Captain Larry H. Ellis, U.S.N. (Retired) ("Ellis Aff. 11 ) ~ 36 [Dkt. No. 160-6]; see also id. ~~ 6, 11. However, neither the Ellis Affidavit, nor the related Ellis Memorandum [Dkt. No. 13215] 1 suggest that Non-liturgical chaplains' perceptions of religious bias grew out of an organizational culture that is common to the CHC as a whole. 17
Thus, while Plaintiffs may have suffered individual instances of religious intolerance, there is no evidence to suggest their experiences reflect a culture that is consistent across time and space and common to the entire class. See Dukes

17 In some cases, such perceptions appear to have arisen only

after individual chaplains spoke with their endorsing agencies

or read documents related to this case and other similar cases.

See, e.g., Decl. of Patrick M. Sturm~ 4 [Dkt. No. 178-7] (after

"talking with my endorser, it became obvious that CFGC chaplains

were not being treated fairly in the Navy11 ) ; Add. to Consol.

Compl. at 22, 23 (only "[a]fter reviewing the issues and

evidence related to this action, 11 did "CH Hatch bee [o] me aware

[of] the CHC' s biased policies 11 ); id. at 26 (prior to reading

documents related to this case, CH Hendricks "believed [that the

Navy's] promotion system was fair, all records were competitive,

and faith group was not important [to promotion] 11 ) ; id. at 3 8

("Prior to [hearing about the allegations in this case] , 11 CH Mak

"believed the Navy's .

promotion system was fair and [that]

faith group was not a factor in promotion decisions 11 ); id. at 49

( "CH Quiles thought his non-selection was 'the luck of the

draw.' Through one of the co-Plaintiffs, he learned of

the injustice done to him. 11 ); id. at 67 ("Prior to hearing about

th [is] litigation in 2002, CH Watson had no knowledge of the

evidence showing religious bias[.] 11 ).

- 36 -

v. Wal-Mart Stores, Inc., 964 F. Supp. 2d 1115, 1124 (N.D. Cal. 2013) (concluding on remand from the Supreme Court that, although plaintiffs' anecdotes of discrimination "succeeded in illustrating attitudes of gender bias ·held by managers at WalMart, they failed to marshal significant proof that intentional discrimination was a general policy affecting the entire class") (emphasis added) .
Therefore, Plaintiffs' individual anecdotes and allegations of a "culture of prejudice" do not provide "significant proof" that Defendants "operated under a general policy of discrimination," as required under Wal-Mart. Wal-Mart, 131 S. Ct. at 2553.
b. Policies and Practices Next, Plaintiffs purport to satisfy the commonality requirement by challenging the legality of specific personnel policies and practices that allegedly "result [ed] in denominational preferences in the award of career opportunities[.]" Reply at 11. They do not, however, dispute that the Navy's policies expressly require denominational neutrality and religious tolerance. Instead, they argue that "[e]ach of the challenged practices allows denominational representatives to make subjective judgments for which there is no accountability and no process providing effective guarantees
- 37 -

that denomination does not enter into the decision." Reply at

20.

Insofar as Plaintiffs challenge facially neutral policies,

such as secret voting, the small size of selection boards, and

the practice of appointing two chaplains to each board, they

cannot prevail unless they establish that the policies are

motivated by discriminatory intent, lack a rational basis, or

"appear to endorse religion in the eyes of a 'reasonable

observer [ . ] ' " In re Navy Chaplaincy III, 738 F.3d at 430

(emphasis in original)

As our Court of Appeals recently

concluded, Plaintiffs either do not allege or have not shown a

likelihood of success on the merits as to any of these theories.

Id. at 430 ("Given facially neutral policies and no showing of

intent to discriminate,

[plaintiffs] have not shown [a]

likelihood of success [on their Equal Protection claims].") i id.

at 431 ("We feel confident that

reasonable observers .

are most unlikely to believe that the policies convey a message

of government endorsement.").

For the same reasons, and because Plaintiffs make no

further evidentiary showing in this Motion, they also have not

presented "significant proof" to support such theories for

purposes of the commonality requirement under Rule 23 (a) (2).

- 38 -

Therefore, Plaintiffs' attack on facially neutral policies does not infuse Rule 23 (a) (2) commonality into their claims. 18
Plaintiffs also challenge the so-called "1 RC" policy. However, the evidence they have presented to establish the existence of such a policy is negligible. It consists primarily of a chart they prepared reflecting the religious affiliation of promotion board members from 1977 until 2002. See Consol. Compl., Ex. 15 ("Prom. Bd. Chart") [Dkt. No. 132-16] The chart indicates that, from roughly FY 1987 until FY 2002, each selection board included exactly one Roman Catholic member, except for selection boards in FY 1987 and FY 1998, which included two Roman Catholic members. Prom. Bd. Chart at 5-13.
The source of the information in the chart is unclear and there are significant gaps in the data presented. But even if the Court ignores these deficiencies, the chart does not suggest that Roman Catholics were overrepresented, favored, or treated differently than Non-liturgical board members in selection board appointments. To the contrary, it shows that 75 Non-Liturgical board members served on selection boards from FY 1987 and FY
18 In fact, this Court has already dismissed Plaintiffs' facial challenge to various selection board practices, leaving only the possibility of a challenge "as-applied" to "certain individual chaplains." See In re Navy Chaplaincy II, 850 F. Supp. 2d at 96. By definition, a claim that only applies to "certain individual chaplains" would not support commonality as to the entire class.
- 39 -

2002, while only 48 Roman Catholic board members served during the same time period. See generally Prom. Bd. Chart at 5-13. Furthermore, at all relevant times, the Navy's regulations specifically prohibited "[e] xclusion from board membership by reason of gender, race, ethnic origin, or religious affiliation." SECNAVINST 1401.3 ~ 4(a).
Thus, there is virtually no evidence in the record suggesting the Navy ever, in fact, had a "1 RC" policy, and the mere allegation of such a policy cannot provide a basis for commonality under Rule 23(a) (2).
Finally, Plaintiffs suggest that the Navy's policies are inadequate in a way that affects the class as a whole because, although individual personnel decisions are delegated to the discretion of specific selection boards, that policy of delegation, which Plaintiffs refer to as "denominationalism," fails to protect against individualized instances of discrimination. See, e.g., Reply at 10 ("The common theme in all Plaintiffs [sic] challenges is the lack of effective guarantees ensuring religious neutrality in career impacting decisions."); Sur-Sur Reply at 2 ("Denominationalism is the Navy allowing its senior chaplain[s] to exercise their denominational bias without accountability.").
- 40 -

Notwithstanding Plaintiffs'

use of

the

label

"denominationalism" to describe the Chaplain Corps' personnel

system, their theory of commonality boils down to a complaint

that the Chaplain Corps lacks effective protections against

discriminatory decision-making by individual chaplains. See

Reply at 20 ("Each of these challenged practices allows

denominational representatives to make subjective judgments for

which there is no accountability and no process providing

effective guarantees that denomination does not enter into the

decision.").

This theory of commonality is precisely the one rejected by

Walmart and its progeny. See Walmart, at 2553-54 ("The only

corporate policy that the plaintiffs' evidence convincingly

establishes is Wal-Mart's 'policy' of allowing discretion by

local supervisors over employment matters.") i Bolden v. Walsh

Constr. Co., 688 F.3d 898, 893 (7th Cir. 2012) ("Plaintiffs[]

contend[] that Walsh has 14 policies that present common

questions, but all of these boil down to the policy of affording

discretion to each site's superintendent - and Walmart tells us

that local discretion cannot support a company-wide class no

matter how cleverly lawyers may try to repackage local

variability as uniformity.").

- 41 -

In sum, although Plaintiffs repeatedly cite to the alleged existence of unconstitutional "policies and practices" as a basis for class certification, they have not presented "significant proof" of any specific unconstitutional policy or practice that applied to them across the board as a class and produced a common legal injury. Therefore, they may not rely on such policies or practices to satisfy · the commonality requirement of Rule 23(a) (2).
c. Statistical Evidence In their final effort to establish commonality, Plaintiffs rely on statistical evidence purporting to show religious disparities in personnel outcomes within the CHC. Statistical disparities alone generally are not proof that any particular plaintiff, much less the class as a whole, has been discriminated against. See, e.g., Bolden, 688 F.3d at 896 ("If [defendant] had 25 superintendents, 5 of whom discriminated
aggregate data would show that black workers did worse than white workers - but that result would not imply that all 25 superintendents behaved similarly, so it would not demonstrate commonality."). Consequently, Plaintiffs' statistical evidence can satisfy the commonality requirement only if it is so stark as to indicate that the CHC "operated under a general policy of discrimination," Wal-Mart, 131 S. Ct. at 2553, or suggest to the
- 42 -

"reasonable observer" that the Navy has endorsed a religious

group. In re Navy Chaplaincy III, 738 F.3d at 430. 19

As. this Court has already found, and the Court of Appeals

recently affirmed, Plaintiffs' statistical evidence

to the

extent it is even statistically significant - "does not remotely

approach the stark character" that might satisfy either of these

tests. Id. at 429 ("[T]he disparity between 73.3% and 83.3%

[promotion rates] does not remotely approach the stark character

of the disparities in Gomillion [v. Lightfoot, 364 U.S. 339

(1960)] or Yick Wo [v. Hopkins, 118 U.S. 356 (1886)] ."); id. at

431 ("Assuming arguendo that it is proper to see the 'reasonable

observer' as a hypothetical person reviewing an array of

statistics .

the figures in this case would not lead him [or

her] to perceive endorsement.").

Furthermore, Dr. Leuba, Plaintiffs' expert, has expressly

stated that his statistical analysis does not purport to show

that discrimination infects every CHC personnel decision, but

merely that "some bias will creep in" because he believes that

chaplains of different faiths "cannot avoid having their

19 Because Plaintiffs bring their claims under the First and Fifth Amendments, not Title VII, disparate impact is not sufficient to sustain their claims; our Court of Appeals has held that they must demonstrate intentional discrimination or objective religious endorsement. In re Navy Chaplaincy III, 738 F. 3d at 429-30 (citations omitted) .
- 43 -

judgment tainted by their beliefs, even when they try to be

denominationally neutral." See Decl. of Harald Leuba, Ph.D. ,

dated Sept. 5, 2011 ("Sept. 5, 2011, Leuba Decl. ") at 11, 21

[Dkt. No. 99-3]

In fact, Dr. Leuba emphasizes that intentional

discrimination on a promotion board "would be a RARE occasion

indeed" id. at 2 8, and that he does "not opine that this is

intentional, knowing, denominational discrimination on the part

of the individual chaplains."

Statistical Evidence of the

Navy's Religious Preferences, Decl. [of Harald Leuba, Ph.D.]

dated Nov. 11, 2011, at 45 [Dkt. No. 147-10] (emphasis in original) . 20 Therefore, Plaintiffs' statistical evidence does

20 Dr. Leuba' s analysis also suffers from a series of

methodological flaws, one of which is that he "made no attempt

to control for potential confounding variables" other than

religious denomination, such as "promotion ratings, education,

or time service," that might account for the disparities he

observed. In re Navy Chaplaincy III, 738 F.3d at 429 (observing

that Dr. Leuba's analysis "does little for our analysis" because

"[c] orrelation is not causation") (citation and quotation marks

omitted); see also Sept. 5, 2011, Leuba Decl. at 21 ("The data

show statistical correlation; they do not demonstrate intent or

cause.") . This failure renders his analysis of little value in

establishing that faith group membership is, in fact, the cause

of the observed disparities. See Love v. Johanns, 439 F.3d 723,

731 (D.C. Cir. 2006) ("[T]here are countless other, non-

discriminatory explanations for any patterns in the USDA's

lending data.

Instead of conducting a relatively simple

statistical analysis (such as a multiple regression) to control

for any or all of these variables, [plaintiffs' expert] simply

reported a series of elementary cross-tabulations, from which it

is impossible

as a statistical matter

to draw meaningful

conclusions.") (citations omitted)

- 44 -

not constitute "significant proof" that intentional religious discrimination or religious endorsement is or was Defendants' "standard practice."
For all of the foregoing reasons, Plaintiffs have not demonstrated the existence of a "common answer to the crucial question why was I disfavored." Wal-Mart, 131 S. Ct. at 2552 (emphasis in original) . Consequently, they have not satisfied the commonality requirement of Rule 23(a) (2).
2. Typicality Plaintiffs also fail to satisfy the typicality requirement of Rule 23 (a) (3). This provision requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed. R. Civ. P. 23 (a) (3). Like the commonality requirement, it seeks to "measure the degree of interrelatedness between the claims in a class action," but it "is more exacting because it requires sufficient factual and legal similarity between the class representative's claims and those of the class to ensure that the representative's interests are in fact aligned with those of the absent class members." William B. Rubenstein, Newberg on Class Actions § 3:31 (5th ed. 2013). The typicality requirement is satisfied only "if each class member's claim arises from the same course of events that led to the claims of the representative parties and each class
- 45 -

member makes similar legal arguments to prove the defendant's

liability." Pigford v. Glickman, 182 F.R.D. 341, 349· (D.D.C.

1998).

As discussed, Plaintiffs have not shown that their claims

have even a single question of law or fact in common with any of

the absent class members. Consequently, it would be impossible

to conclude that their claims "arise from the same course of

events" or are otherwise "typical" of the absent class members

claims. See Falcon, 457 U.S. at 157-58 n .13 (noting that the

"commonality and typicality requirements

tend to merge") ;

Daskalea v. Washington Humane Soc., 275 F.R.D. 346, 358 (D.D.C.

2011) (typicality requirement not met where "members of the

proposed class suffered a wide range of deprivations

and

claim distinct injuries"); Webb v. Merck & Co., Inc., 206 F.R.D.

399, 408 (E.D. Pa. 2002) (analyzing commonality and typicality

together and concluding that neither were met because

"[p] laintiffs were employed in different states, in different

divisions, in different facilities and at different levels

within the company hierarchy.

In essence, this action is

nothing more than a consolidation of 20 accounts of

individualized disparate treatment.").

- 46 -

In sum, Plaintiffs have also failed to meet the typicality requirement of Rule 23 (a) (3) . 2l
3. Adequacy of Representation The final requirement for class certification under Rule 23 (a) is that "the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23 (a) (4). "The adequacy requirement is satisfied upon a showing that (1) there is no conflict of interest between the proposed class representative and other members of the class, and (2) the proposed class representative will vigorously prosecute the interests of the class through qualified counsel." Alvarez v. Keystone Plus Constr. Corp., No. 13-602, 2014 WL 1400846, at *6 (D.D.C. Apr. 11, 2014) (citations and quotation marks omitted). "The inquiry into adequacy of representation, in particular, requires the district court's close scrutiny, because the purpose of Rule 23 (a) (4) is to ensure due process for absent class members, who generally are bound by a judgment rendered in a class action." Rattray v. Woodbury County, 614 F.3d 831, 835 (8th Cir. 2010). Defendants argue that Plaintiffs are not adequate representatives because "their paramount interest in this

2 l

Having concluded as much,

the Court need not

reach Defendants'

challenge to Plaintiffs' "mix and match" theory of typicality.

See Opp'n at 41-42.

- 47 -

litigation is the advancement of their collective goal of

institutional reform," which is not necessarily aligned with the

individual interests of each class member. Opp'n at 45-46. The

Court agrees.

By bringing their claims in this Court, where they are

limited to declaratory and injunctive relief, rather than in the

Court of Federal Claims, where no such limits are present, and

by further seeking to certify the class under Rule 23(b) (1) and

(b) (2), Plaintiffs are jeopardizing the rights of individual

class members to seek the full range of remedies to which they

may be entitled. See Wal-Mart, 131 8. Ct. at 2559 (noting

"perverse incentives for class representatives to place at risk

potentially valid claims for monetary relief" in order to ensure

class certification) .

Plaintiffs' desire for wide-ranging

institutional reform therefore may very well be in conflict with

the interests of specific class members to obtain individualized

and/or monetary relief.

Furthermore, Plaintiffs have repeatedly subordinated the

proposed class members' interests in prompt adjudication of

thei:J;" claims to their campaign for institutional reform. For

example, rather than expeditiously preparing this case for

trial, Plaintiffs filed a series of unsuccessful motions for

injunctive relief and related appeals, which have taken years to

- 48 -

resolve. See Chaplaincy of Full Gospel Churches, 454 F. 3d at

295 (describing Plaintiffs' "prolonged series of motions and

petitions") (citations omitted).

In 2006, further delaying any prompt adjudication of this

lawsuit, Plaintiffs moved this Court to vacate its Order

granting class certification.

They acknowledge that one

significant reason for that request was to permit their counsel

to file Gibson as a new putative class action in a separate

ju~isdiction and thereby avoid rulings of this Court they

perceived as hostile to their quest for institutional reform.

See Pl.'s Reply at 27; Pl.'s Opp'n to Defs. Mot. for P. Summ. J.

at 30-31 [Dkt. No. 172] 22

Thereafter, in conjunction with the filing of Gibson,

Plaintiffs took further actions that significantly delayed the

progress of this case. For example, after the District Court

sitting in the Northern District of Florida granted Defendants'

motion to transfer Gibson to this Court, Plaintiffs asked this

Court to stay the case while their counsel unsuccessfully

appealed the Florida District Court's transfer order to the

22 Plaintiffs suggest that class decertification was a "logical" step because of the Court's "four-year delay in defining the class [.]" Pls.' Reply at 27. Yet there is no indication that Plaintiffs ever asked the Court to define the class or that its failure to do so resulted from anything other than the extensive litigation surrounding other issues in the case, including Plaintiffs' many Motions for injunctive relief.
- 49 -

Court of Appeals for the Eleventh Circuit. See Gibson Dkt. No. 4. Thereafter, Plaintiffs filed yet another motion in this Court to transfer Gibson back to the, Northern District of Florida, which was also unsuccessful. See Gibson Dkt. Nos. 5 & 6. These actions alone set the progress of this case back by approximately two years.
Moreover, in moving for class decertification in this case in 2006, Plaintiffs stated that they were "no longer willing or able to represent or to assume the burdens inherent in representing the class" because of recent changes to their employment status and other life transitions. See Pls.' Mot. to Vacate Order Granting Pls.' Mot. to Certify Class at 2 [Adair Dkt. No. 156]. Plaintiffs have not explained why, having once abandoned their willingness to represent the class, they are now willing and able, once again, to serve as class representatives.
Finally, the Court notes the existence of an entirely different type of conflict of interest. In the context of this Motion, Plaintiffs have deviated significantly from their original core allegation that the Navy's bias lies against Nonliturgical Protestants as a class. They now argue that the Navy actually favors certain "liberal" Non-liturgical Protestants, such as Baptists, but disfavors "[t]heologically more conservative" Non-liturgical denominations. Mot. at 17-18.
- 50 -

Plaintiffs' readiness to draw divisions among members of the proposed class strongly indicates that they cannot be fair and impartial representatives of the class as a whole. Baptist class members (or those of other "liberal" faiths) might have legitimate concerns that Plaintiffs will not zealously represent their interests. See Phillips v. Klassen, 502 F. 2d 362, 366 (D.C. Cir. 1974) ("Class members whose interests are antagonistic in fact to, or even 'potentially conflicting' with, the interests of the ostensibly representative parties cannot be bound, consistent with the requirements of due process, to an adjudication taken in their name." (quoting Hansberry v. Lee,
311 u.s. 32, 41-42 (1940)) 23
In sum, Plaintiffs' litigation record, considered in its entirety, raises serious questions as to whether they will properly protect and prioritize the welfare and interests of the class members, especially to the extent such interests diverge from their determination to obtain broad scale institutional reform. Cf. E. Texas Motor Freight Sys. Inc. v. Rodriguez, 431
23 While the Court acknowledges that some of the named Plaintiffs are themselves Baptist, that fact does not resolve its concerns. Other Baptist chaplains, as well as chaplains of deriominations that Plaintiffs consider to be "liberal," may or may not agree with Plaintiffs' view that they are "favored" by the Navy's policies and may, in any event, be concerned that Plaintiffs' counsel will treat them differently from other members of the class.
- 51 -

U.S. 395, 405 (1977) (named plaintiffs' request for relief that

was inconsistent with vote of class members and their "failure

to protect the interests of class members by moving for

certification surely bears strongly on the adequacy of the

representation that those class members might expect

receive")

For all of the foregoing reasons, Plaintiffs have not

demonstrated that they are adequate class representatives.

C. Rule 23 (b)

Even assuming Plaintiffs had satisfied the four

prerequisites set forth in Rule 23(a), they would still bear the

burden of establishing that the class is maintainable under one

of the subdivisions of Rule 23 (b) . As discussed below, they

also fail to meet this burden.

1. Rule 23(b)(l}

Under Rule 23(b) (1), certification is appropriate where

requiring the prosecution of separate actions by individual

class members would run the risk of establishing "incompatible

standards of conduct" for the defendants, Fed. R. Civ. P.

23(b) (1) (A); or where individual adjudications would, "as a

practical matter,

be dispositive of the interests of the

other members not parties to the individual adjudications or

would substantially impair or impede their ability to protect

- 52 -

their interests." Fed. R. Civ. P. 23 (b) (1) (B). Since there is "always some risk'' that individual actions may expose a defendant to conflicting judgments on liability, certification under subdivision (b) (1) (A) requires "something more namely, a legitimate risk that separate actions may establish 'incompatible standards of conduct, '" so as to make individual actions "'impossible or unworkable. '" Daskalea, 275 F.R.D. at 365 (emphasis in original) (citing 2 H. Newberg & A. Conte, Newberg on Class Actions§ 4:4 (4th ed. 2002)) and Wal-Mart, 131 S. Ct. at 2558)
The Court finds virtually no risk that prosecuting separate actions by individual class members would establish "incompatible standards of conduct" for Defendants. At least five district courts and two Courts of Appeals have examined Plaintiffs' allegations (or substantially similar ones) over the past decade and none has found the Navy's current policies to be unlawful, much less accepted Plaintiffs' invitation to rewrite such policies in their entirety. 24 Consequently, there is no legitimate risk that maintaining separate actions would establish incompatible standards of conduct for Defendants.
24 See In re Navy Chaplaincy III, 783 F.3d at 429-431, Larsen I, 525 F.3d 1; Larsen II, 887 F. Supp. 2d 247; Larsen v. U.S. Navy, 486 F. Supp. 2d 11 (D.D.C. 2007); Wilkins Mem. Op. of June 29, 2005, aff'd 232 F. App'x 710 (9th Cir. 2007); Sturm Mem. Op. of June 18, 2002, aff'd 76 F. App'x 833 (9th Cir. 2003);
- 53 -

Likewise, separate actions would not impair or impede the ability of nonparties to protect their interests. Quite the contrary: allowing the case to proceed as a class action might have preclusive effect for absent class members, thereby impairing their ability to protect their own interests. WalMart, 131 S. Ct. at 2559 (noting that class certification under Rule 23 (b) (2) created possibility "that individual class members' compensatory-damages claims would be precluded by litigation they had no power to hold themselves apart from"). Requiring separate actions, however, will not prevent any absent class member from challenging the Navy's personnel practices or bringing an individual discrimination claim in the future.
Consequently, Plaintiffs have not shown that the proposed class is maintainable under Rule 23(b) (1).
2. Rule 23 (b) (2)
Rule 23 (b) (2) is satisfied where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]" Fed. R. Civ. P. 23(b) (2). The "key to the (b) (2) class is the indivisible nature of the injunctive or declaratory remedy warranted the notion that the conduct is such that it can be enjoined or declared unlawful only as to all
- 54 -

of the class members or as to none of them." D.L., 713 F.3d at 125 (citing Wal-Mart, 131 S. Ct. at 2557) (quotation marks omitted) .
Rule 23 (b) (2) thus "applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant." Id. (citing Wal-Mart, 131 S. Ct. at 2557). Thus, it is not enough for class plaintiffs to "superficially structure[] their case around a claim for class-wide injunctive and declaratory relief
. if as a substantive matter the relief sought would merely initiate a process through which highly individualized determinations of liability and remedy are made; this kind of relief would be class-wide in name only, and it would certainly not be final." Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 498-99 (7th Cir. 2012).
As discussed above, Plaintiffs have not identified any "common harm suffered as a result of a policy or practice that affects each class member." Id. Furthermore, the primary relief they seek under Rule 23(b) (2) is an order declaring the results of each of their respective selection board proceedings "void ab initio." Assuming such an order is available under the
- 55 -

case law in this Circuit, it certainly would not constitute

"final" relief to the class as a whole. Instead, it would

merely initiate a process by which individual chaplains would

seek reinstatement, new selection board proceedings, correction

of their personnel records, and backpay.

For these reasons, Plaintiffs have not shown that the

proposed class is maintainable under Rule 23(b) (2).

3. Rule 23 (b) (3)

Finally, Plaintiffs seek certification under Rule 23 (b) (3).

Certification under this subsection is appropriate where "the

questions of law or fact common to class members predominate

over any questions affecting only individual members" and "a

class action is superior to other available methods for fairly

and efficiently adjudicating the controversy." Fed. R. Civ. P.

23(b)(3).

"[T]he predominance inquiry duplicates the

commonality analysis in many respects," but is "far more

demanding" and delves "further into the relative importance of

the common issues to the case." Daskalea, 275 F.R.D. at 368

(citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624 (1997)

and Barnes v. District of Columbia, 242 F.R.D. 113, 123 (D.D.C.

2007)). Ultimately, a class should be certified under Rule

23 (b) (3) "only when it would achieve economies of time, effort,

and expense, and promote uniformity of decision as to persons

- 56 -

similarly situated, without sacrificing procedural fairness or

bringing about other undesirable results." Myers v. Hertz

Corp., 624 F.3d 537, 547 (2d Cir. 2010) (citation and internal

punctuation omitted))

Here, Plaintiffs have failed to demonstrate commonality

under Rule 23 (a) (2) , and therefore, they necessarily fail to

satisfy the "far more demanding" requirement of predominance.

Furthermore, for all of the many reasons set forth above, class

certification would not achieve economies of time, effort, and

expense, but instead would exponentially complicate the case;

place at risk individual claims of absent class members that may

overlap with the allegations in the Consolidated Complaint; and

jeopardize Defendants' rights to individualized determinations

on myriad fact-specific claims of discrimination and Free

Exercise harm.

In sum, Plaintiffs have also failed to

demonstrate that the proposed class is maintainable under Rule

23(b)(3).

- 57 -

IV. CONCLUSION For the foregoing reasons, Plaintiffs' Motion shall be
denied, and their claim relating to the Thirds Policy shall be dismissed for lack of subject matter jurisdiction. September 4, 2014 Copies to: attorneys on record via ECF
- 58 -

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: NAVY CHAPLAINCY

Case No. 1:07-mc-269 (GK}

MEMORANDUM OPINION Plaintiffs, 65 current and former Non-liturgical Protestant chaplains in the United States Navy, their endorsing agencies, and a fellowship of non-denominational Christian evangelical churches, bring this consolidated action against the Department of the Navy and several of its officials. Plaintiffs allege that Defendants discriminated against Non-liturgical Protestant chaplains on the basis of their religion, maintained a culture of denominational favoritism in the Navy, and infringed on their free exercise and free speech rights. This matter is before the Court on the parties' CrossMotions for Partial Summary Judgment. Upon consideration of Defendants' Motion [Dkt. No. 159], Plaintiffs' Opposition and Cross-Motion [Dkt. No. 172], Defendants' Reply and Opposition to the Cross-Motion [Dkt. No. 182], and Plaintiffs' Reply to the Cross-Motion [Dkt. No. 189], and the entire record herein, and for the reasons set forth below, Defendants' Motion shall be granted and Plaintiffs' Cross-Motion shall be denied.

I . BACKGROUND
A. The Navy Chaplain Corps1
The Navy employs a corps of chaplains ("Chaplain Corps" or
"CHC") whose mission is to provide for the free exercise of
religion by members of the Navy, their dependents, and other
authorized persons. In re Eng1and, 3 75 F . 3d 116 9 , 11 71 (D. C.
Cir. 2004) (citation omitted). In accordance with this mission,
Navy chaplains provide religious education, counseling, and
support to sailors and Marines and advise commanders on
religious, moral, and ethical issues. Id.
"A Navy chaplain's role within the service is 'unique, '
involving simultaneous service as clergy or a 'professional
representative[]' of a particular religious denomination and as
a commissioned naval officer." Id. (citing OPNAVINST 1730.1,
Chaplains Manual 1-2-1-3 (Dep't of the Navy Oct. 3, 1973)).
Chapl,ains must have a graduate level theology degree or
1 In setting out the disputed and undisputed facts on a motion for summary judgment, a court typically relies on the parties' Statements of Undisputed Material Facts submitted pursuant to Local Civil Rule 7(h). The parties in this case submitted Rule 7(h) Statements, but instead of setting forth facts related to the timeliness of Plaintiffs' claims (the only issue presented in this Motion), the parties submitted 139 pages of argument on the merits of Plaintiffs' claims. The Rule 7(h) Statements are therefore of little value for their intended purpose. Accordingly, the Court confines its factual recitation to basic undisputed background information set forth in the Plaintiffs' Consolidated Complaint and prior decisions issued in this case.
-2 -

equivalent while also meeting the physical and educational

requirements applicable to all commissioned officers. Id. In

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

agency as qualified to represent that particular faith group

within the Chaplain Corps. Id. at 1172.

There are over 100 faith groups recognized by the

Department of Defense, which the Navy has grouped into four

"faith group categories" consisting of: Roman Catholic,

Liturgical Protestant, Non-liturgical Protestant, and Special

Worship. In re Navy Chaplaincy, 697 F. 3d 1171, 1173 (D.C. Cir.

2012) ("In re Navy Chaplaincy II").

The Liturgical Protestant category includes Protestant

denominations that trace their origins to the Protestant

Reformation, practice infant baptism, and conduct services

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

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

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

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

Protestant denominations that do not follow a formal liturgy and

baptize at the "age of reason," including Baptist, Evangelical,

Pentecostal, Bible Church, and Charismatic faiths.

In re

England, 375 F.3d at 1172; Consol. Compl. ~ 6(c). The Special

Worship group includes denominations not covered by the
-3-

Protestant and Roman Catholic categories, including Jewish,

Hindu, Buddhist, Muslim, Jehovah, s Witness, Christian Science,

Mormon, and Unitarian faiths.

Chaplaincy of Full Gospel

Churches v. England, 454 F.3d 290, 295 n.3 (D.C. Cir. 2006);

Consol. Compl. ~ 6 n.5.

B. The Navy's Personnel System

Chaplains enter the Navy through a civilian clergy program

or a theological student program. Consol. Compl. ~ 44 (c) .

Thereafter, they are subject to the same personnel system as

other naval officers and must be selected for promotion in rank

when the needs of the service require. In re England, 375 F.3d

at 1172 (citing 10 U.S.C. § 611(a))

If an officer is

considered but not selected for a promotion, he or she is said

to have "failed of selection." Chaplaincy of Full Gospel

Churches, 454 F.3d at 293. After failing of selection on two or

more occasions, an officer is subject to involuntary separation,

known as "sel~ctive early retirement." See 10 U.S.C. § 632 (a)-

(b) . However, the Navy may elect to continue an officer on

active duty despite two or more failures of selection as its

needs require. See 10 U.S.C. § 632 (c) (2).

Each of these decisions regarding a naval officer 1 s career

promotion, selective early retirement, and continuation on

active duty

is made by a "selection board" composed of
-4 -

superior officers who act pursuant to statute and regulations

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

612. 2 Under the current procedures, selection boards are

composed of seven members : two chaplains and five other

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

board member takes an oath to perform his or her duties "without

prejudice or partiality and having in view both the special

fitness of officers and the efficiency of [the Navy] " 10

u.s.c. § 613.

Selection board proceedings are secret and "may not be

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

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

u.s.c .. § 614 (a).

In furtherance of this mandate, board

discussions, deliberations, notes, and records are statutorily

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

in any judicial or administrative proceeding without the consent

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

2 Selection boards operate differently depending on the rank and type of personnel action under consideration. See generally 10 U.S.C. §§ 611, 612. Unless otherwise stated, the Court will use the term "selection board" to refer generically to all boards convened for the purpose of considering a change to a naval officer's employment status.
- 5-

C. Plaintiffs' Claims Plaintiffs challenge several current and historical aspects of the CHC's personnel system. The following is an illustrative sampling of their claims. 3 First, they contend that the faith group categories recognized by the Navy are discriminatory and arbitrary. Consol. Compl. ~~ 33-38. In particular, they claim that the categories reflect neither religious demographics nor legitimate similarities or differences among the worship traditions represented. Second, they allege that in the past (but not since at least 2002), the CHC used religious quotas to apportion chaplain opportunities among various faith groups. Consol. Compl. ~~ 3335. In particular, they allege that, from 1976 until 1986, Defendants implemented a policy of appointing at least two Roman Catholic chaplains to every career-grade chaplain selection board (the "2 RC Policy") and, from 1986 until 2002, maintained a similar policy of appointing at least one Roman Catholic chaplain to every such board (the "1 RC Policy") . Consol. Compl. ~~ 8, 57(e). According to Plaintiffs, the "1 RC" and "2
Plaintiffs' Consolidated Complaint exceeds 120 pages and asserts eighteen separate counts. For purposes here, the Court confines its discussion to the claims Defendants contend are time-barred.
- 6-

RC" Policies were designed to "stack" selection board
proceedings against Non-liturgical candidates and in favor of
Roman Catholic and Liturgical Protestant chaplains despite their
allegedly declining numbers in the broader population. Consol. Compl. ··~~ 57 (e)- (g) . 4 Defendants deny that such policies ever
existed.
Third, Plaintiffs challenge a number of facially neutral
personnel practices - both current and historical - that they
believe have allowed religious bias to infect selection board
outcomes. These include: (1) the small size of selection
boards; (2) the placement of two chaplains on each board, one of
whom is either the Chief of Chaplains or one of his or her
deputies; and (3) the use of "secret confidence voting," in
which board members anonymously indicate their degree of
confidence in a candidate in 25-degree increments ranging from
zero to one hundred. Plaintiffs claim that these practices,
taken together, "enable[] each board's chaplains to ensure that
a particular candidate will not be promoted, thus increasing the
4 Plaintiffs also originally alleged that,· between 1986 and 2000, the Navy employed a so-called "Thirds Policy" under which it reserved roughly one third of chaplain opportunities to Liturgical Protestants, one third to "Non-liturgical faith groups," and one third to "Others," including Catholics. Consol. Compl. ~~ 33, 35, 43. However, the Court has recently dismissed that claim for lack of subject matter jurisdiction. See In re Navy Chaplaincy, No. 7-269, 2014 WL 4378781, at *6-9 (D.D.C. Sept. 4, 2014) ("In re Navy Chaplaincy V").
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odds for their preferred (and discriminatory) results." In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013) ("In re Navy Chaplaincy IV").
Plaintiffs also challenge a practice, which they concede has not existed since 2002, in which "each selection candidate's three-digit 'faith group identifier' code was prominently displayed throughout the selection board process." Consol. Compl. ~ 86. Plaintiffs contend this practice had no purpose other than "to identify a candidate's faith group to the board" for purposes of permitting the board members "to exercise their individual or faith group prejudice for or against other chaplains or faith groups, particularly against Non-liturgical chaplains." Id. ~ 87.
Fourth and finally, Plaintiffs seek relief relating to a variety of specific instances, many of which date back as far as the 1970s and 1980s, in which they allegedly suffered discrimination and free exercise harm while serving in the Chaplain Corps. See Addendum 1 to Consol. Compl. ~~ 12, 21, 37, 41. These include occasions on which Plaintiffs claim to have been: (1) retaliated against, criticized, and removed from their posts based on the content of their religious teachings; (2) treated differently from Liturgical chaplains with respect to disciplinary issues and employment benefits; (3) required to
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officiate at Liturgical services; and/or (4) subjected to general policies that, while not facially discriminatory, disfavored certain aspects of their worship traditions. See generally id. ~~ 1-65. 5
D. Procedural Background
This consolidated case is composed of three cases filed by
the same counsel: Chaplaincy of Full Gospel Churches v. England,
Civ. No. 99-2945 ("CFGC"); Adair v. England, Civ. No. 00-566
("Adair");· and Gibson v. Dep't of Navy, Civ. No. 06-1696
("Gibson") .
CFGC and Adair were filed in this Court on November 5, 1999~ and March 17, 2000, respectively, and were consolidated
for pretrial purposes on September 26, 2000 [Adair Dkt. No. 21].
On April 28, 2006, Plaintiffs' counsel filed Gibson as a
separate putative class action in the Northern District of
Florida, and that case was subsequently transferred to this
District pursuant to 28 U.S. C. § 1404. See Mem. Order, dated
August 17, 2006, at 1 [Gibson Dkt. No. 1]. On June 18 , 2 0 07 ,
5 In addition to the above claims, Plaintiffs also contend that Defendants fraudulently concealed "evidence of prejudice and bias in the selection process," and that the statute mandating secrecy in selection board proceedings, 10 U.S.C. § 613a, is unconstitutional as applied to them. See Consol. Compl. ~~ 187203, 218-224. However, the only specific relief they seek in relation to these claims is the removal of certain impediments to litigating this case.
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the Court consolidated all three actions, concluding that they
raise "substantially similar constitutional challenges to the
Navy Chaplaincy program." Mem. Order, dated June 18, 2007, at 4 [Dkt. No. 11].
Approximately six months after Adair was filed, Defendants
moved to dismiss a number of Plaintiffs' claims, arguing, as they do in this Motion, that the claims are time-barred. [Adair
Dkt. No. 19]. On January 10, 2002, the Court denied that Motion
without prejudice, finding that although the claims were timebarred on their face, Plaintiffs alleged facts to support
equitable tolling of the limitations period. Adair v. England, 183 F. Supp. 2d 31, 54-55 (D.D.C. 2002) ("Adair I") . 6
Shortly thereafter, the Adair Plaintiffs filed a Motion for
Class Certification, which the Court granted on August 19, 2002. See generally Adair v. England, 209 F.R.D. 5 (D.D.C. 2002)
("Adair II"). Approximately one week after Plaintiffs' counsel filed Gibson as a separate putative class action in the Northern
District of Florida, however, the Adair Plaintiffs moved to
6 Defendants again raised their statute of limitations defense in 2 003, in opposition to the Adair Plaintiffs' Motion to Amend their Complaint, and the Court again rejected it as premature. The Court promised, however, to "reconsider the defendants' argument regarding the statute of limitations if the defendants raise it in a motion for summary judgment after the close of discovery." Adair v. Johnson, 216 F.R.D. 183, 188 n.8 (D.D.C. 2003) ("Adair III").
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vacate the Class Certification Order granted by this Court on August 19, 2002, on the basis that they were "no longer willing to represent the ~utative class." See Adair Pls.' Mot. to Vacate [Class Certification] Order at 1 [Adair Dkt. No. 156] . On May 30, 2006, the Court granted that Motion and then decertified the proposed class in Adair. See Adair Minute Order of May 30, 2006. 7
Between 2002 and 2009, the parties conducted discovery, interspersed with collateral litigation and three interlocutory appeals to the D.C. Circuit. In 2012, Judge Ricardo Urbina, the District Judge previously assigned to this case, retired and the case was reassigned to the undersigned. At the Court's request, on October 3, 2012, Plaintiffs filed a Consolidated Complaint [Dkt. No. 134] comprised of all the claims at issue in the consolidated case.
On February 22, 2013, Defendants filed the present Motion for Partial Summary Judgment on their statute of limitations defense [Dkt. No. 159]. On April 5, 2013, Plaintiffs filed their Opposition to Defendants' Motion and Cross-Motion for Partial Summary Judgment [Dkt. No. 172] . On May 22, 2013,
7 After Gibson was transferred to this Court, Plaintiffs filed a Renewed Motion for Class Certification, which the Court recently denied in light of the Supreme Court's intervening decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). See In re Navy Chaplaincy V, 2014 WL 4378781, at *9-20.
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Defendants filed their Reply to the Motion and Opposition to the Cross-Motion [Dkt. No. 182]. On July 1, 2013, Plaintiffs' filed their Reply in support of their Cross-Motion [Dkt. No. 189]. II. LEGAL STANDARD
A party may move for summary judgment as to any claim or defense, or I?art thereof, and the motion should be granted if the movant establishes that there is no genuine dispute as to any material fact and the issue may be resolved as a matter of law. Fed. R. Civ. P. 56(a) "A fact is 'material' if a dispute over it .might affect the outcome of a suit under governing law [.]" Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is "genuine" if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
The party seeking summary judgment "bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record," including depositions, documents, affidavits, admissions or other materials, or by "showing that the materials
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cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact[.]" Fed R. Civ. P. 56 (c) (1). If the movant meets its burden, the opposing party must ·come forward with evidence of specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In deciding a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). However, "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient" to survive summary judgment. Liberty Lobby, Inc., 477 U.S. at 252. As the Supreme Court stated in Celotex Corp., "the plain language of Rule 56 (c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." 477 U.S. at 322.
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III. ANALYSIS Relying on the six-year statute of limitations set forth in
2 8 U.S. C. § 24 01 (a) , Defendants argue that many of Plaintiffs' claims are time-barred, having been filed more than six years after finalization of the policies and personnel actions on which they are based.
Plaintiffs agree that their claims are governed by 28 U.S.C. § 2401(a), which provides that a "civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a). They argue, however, that their claims did not accrue until they discovered the allegedly discriminatory nature of the CHC's practices and, therefore, that such claims are timely under Section 2401 (a) . In the alternat~ve, they contend that even if their claims are untimely, the Court should apply equitable tolling doctrines to permit them to proceed.
If, as Defendants argue, Plaintiffs' claims accrued when the policies and personnel actions on which they are based became final, many of such claims are barred by the plain language of Section 2401 (a) . In particular, unless a tolling rule applies, Defendants would be entitled to judgment in their favor on: all CFGC claims based on policies or personnel actions
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finalized prior to November 5, 1993; all Adair claims based on policies or personnel actions finalized prior to March 17, 1994; and all Gibson claims based on policies or personnel actions finalized prior to April 28, 2000. See Defs.' Mem. at 8-11.
Consequently, the Court shall first address the issue of when Plaintiffs' claims accrued for purposes of triggering the six-year limitations period in Section 2401(a). Then, it shall address Plaintiffs' argument that the limitations period in Section 2401(a) should be equitably tolled.
A. Accrual 1. Plaintiffs' Claims Accrued When the Challenged Policies and Personnel Actions Became Final
In general, a claim accrues when "the plaintiff has a complete and present cause of action" and "can file suit and obtain relief[.]" Earle v. Dist. of Columbia, 707 F.3d 299, 305 (D.C. Cir. 20l2) (citation and quotation marks omitted).
In employment discrimination cases such as this one, this rule yields different results depending on the specific legal theory at issue. In particular, the Supreme Court has held that a claim challenging a facially neutral employment policy as intentionally discriminatory under Title VII of the Civil Rights Act of 1964, accrues on the date the policy becomes final, not the date it is applied to the plaintiff. See, e.g., Lorance v.
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AT & T Technologies, Inc., 490 U.S. 900, 905 (1989). By contrast, a claim challenging a facially discriminatory policy
under Title VII accrues when the policy is applied to the
plaintiff. See Ledbetter v. Goodyear Tire & Rubber Co., 550
U.S. 618, 634 (2007) (citing Bazemore v. Friday, 478 U.S. 385
(1986)), superseded by statute on other grounds, Lilly Ledbetter
Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5, 42 U.S.C. §2000e-5 (e). 8
In light of these different rules, the Supreme Court has
"stressed the need to identify with care the specific employment
practice that is at issue" before determining the accrual date for any particular claim. Id. at 624 (citing Nat' 1 Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 110-11 (2002)).
In advocating for their respective approaches to accrual,
the parties have neither "identif [ied] with care the specific
employment practice [s] that [are] at issue" in each claim nor addressed the possibility that different rules apply to
8 Although Plaintiffs do not rely ori Title VII of the Civil Rights Act of 1964, the essence of their claims is that they were discriminated against on the basis of their religion. Therefore, and in the absence of any authority directly on point, the Court relies on accrual principles developed in the Title VII context. See Veitch v. England, 471 F.3d 124, 127 (D.C. Cir. 2006) (relying on Title VII principles to evaluate former Navy chaplain's constructive discharge claim under the First Amendment) .
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different claims depending on whether facially neutral or facially discriminatory practices are at issue. Defendants are correct, however, that under any of the rules articulated by the Supreme Court in the controlling cases set forth above, Plaintiffs' claims could accrue no later than the date on which the policies and personnel actions on which they are based became final . See, e.g., Ledbetter, 550 U.S. at 637; Morgan, 53 6 U.S. at 112-13; see also Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (employment discrimination claim under Title VII and 42 U.S.C. § 1981 accrued at time "the tenure decision was made and communicated to [the plaintiff]") . Therefore, the Court will apply that accrual rule to Plaintiffs' claims.
2. The "Discovery Rule" Does Not Apply Invoking the "discovery rule" - a variant of the general rule set forth above - Plaintiffs argue that their claims did not accrue until they discovered the allegedly discriminatory nature of the practices at issue. Pls.' Opp' n at 21-22; Pls.' Reply at 17. The discovery rule is most often reserved for tort cases which, unlike this case, involve injuries that are difficult to discover. See, e.g., Gabelli v. S.E.C., 133 S. Ct. 1216, 1221-22 (2013); Kifafi v. Hilton Hotels Ret. Plan, 701 F.3d 718, 729 (D.C. Cir. 2012)
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Even assuming, however, that the "discovery rule" applied

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

the

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

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

There is

nothing in this record to suggest Plaintiffs were not on notice

of their employment injuries at the time they occurred. 9

Attempting to avoid this conclusion, Plaintiffs seek to

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

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

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

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

16-17. This argument fails as well.

Our Court of Appeals has expressly rejected the contention

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

alleged malfeasance

constitute[s] an independent injury"

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

F.2d 629, 637 (D.C. Cir. 1987)

Therefore, "an employee who

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

9 Plaintiffs concede that "[they] knew they had failed of selection" when the selection board decisions were announced. Pls.' Opp'n at 23. By the same token, they also knew when they were assigned to inadequate or unsuitable religious facilities; when they were chastised or disciplined based on the content of their religious teachings; and when they experienced the many other acts of discrimination and Free Exercise violations alleged in their Consolidated Complaint.
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employment decision) need not be aware of the unlawful
discriminatory intent behind that act for the limitations clock to start ticking." Almond v. Unified Sch. Dist. No. 501, 665
F. 3d 1174, 1177 (lOth Cir. 2011); see also Coppinger-Martin v. Solis, 627 F.3d 745, 749 (9th Cir. 2010) (same) (citing cases) . 10
In sum, the discovery rule is not applicable to Plaintiffs'
claims and, in any event, leads to precisely the same conclusion
as the general rule: Plaintiffs' claims accrued no later than
the date on which the policies and personnel actions at issue
became final.
3. The "Continuing Violation Doctrine" Does Not Apply
Plaintiffs also urge the Court to apply the "continuing violation doctrine" to the accrual of their claims. Pls.' Opp' n
at 17. This doctrine - another variant of the general rule -
stems from judicial recognition that certain events cannot "be
made the subject of a lawsuit when [they] first occur[]
typically because it is only [their] cumulative impact
10 Plaintiffs' related argument, Pls.' Reply at 3, 16, that their claims did not accrue until they obtained concrete proof of discrimination is also easily rejected: accrual does not depend on the quantum of evidence in a plaintiff's possession. As the Supreme Court held in Rotella, such a rule "would undercut every single policy" in favor of a statute of limitations and "doom any hope of certainty in identifying potential liability." Rotella, 528 U.S. at 555-56.
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that reveals [their] illegality." Earle, 707 F.3d at 306

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

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

The Supreme Court has made clear, however, that this

doctrine, which is almost exclusively applied to hostile work

environment claims under Title VII I does not apply to

discrimination claims based on specific adverse employment

actions ·because a "discrete retaliatory or discriminatory act

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

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

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

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

Plaintiffs do not bring any hostile work environment claims

under Title VII, and they fail to offer any persuasive

explanation as to why the "continuing violation doctrine" is

applicable to their First and Fifth Amendment claims alleging

discriminatory employment decisions and specific free exercise

harms.

Their central argument is that evidence of

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

"detailed statistical analysis of the chaplain promotion board

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

just a variation of their previously rejected argument that

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their claims did not accrue until they discovered evidence of the Navy's alleged discrimination. See supra note 10.
Furthermore, the continuing violation doctrine applies to "claims that by their nature occur not 'on any particular day' but 'over a series of days or perhaps years [ . ] " Mayers v. Laborers' Health & Safety Fund, 478 F.3d 364, 368 (D.C. Cir. 2007) (emphasis added). It does not apply to the cumulative search for evidence to prove a discrete claim. See Rotella, 528 U.S. at 555-56. 11
In sum, the injuries of which Plaintiffs complain - failure of selection, selective early retirement, and specific instances of free exercise harm - are "discrete," even if they are alleged to have been "undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period." Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 15758 (2d Cir.. 2012), cert. denied, 133 S. Ct. 1724 (2013) (citing cases) . Accordingly, the "continuing violation doctrine" is inapplicable to the facts of this case.
11 The Court, of course, makes no findings as to the scope of the evidence on which Plaintiffs may rely to support their timely claims. See Chin, 685 F. 3d at 150 (noting that the plaintiffs could rely on "data ·from outside the statute of limitations to prove timely discriminatory acts") (citation omitted).
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B. Equitable Tolling of the Limitations Period Is Denied

Having concluded that Plaintiffs' claims accrued no later

than when the policies and personnel actions at issue became

final, all claims of Plaintiffs accruing more than six years

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

tolling rule applies.

Plaintiffs advance two discrete arguments related to such

tolling. First, they contend that the limitations period for

each of the three consolidated cases should be equitably tolled

because Defendants "fraudulently concealed" their alleged

wrongdoing.

Second, they contend that the "class action

tolling" doctrine adopted by the Supreme Court in American Pipe

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

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

to Gibson, which would toll the limitations period for the

Gibson Plaintiffs during the pendency of the Adair class action.

Defendants counter that the Court lacks any authority to

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

compliance with that provision is a "jurisdictional" condition

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

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

Plaintiffs fail to present evidence from which a reasonable

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juror could conclude that either tolling doctrine applies to the facts of this case.
Our Court of Appeals has "long held," and recently reaffirmed, that Section 2401 (a) is unlike a "normal statute of limitations" because it "'creates a jurisdictional condition attached to the government's waiver of sovereign immunity" that "cannot be waived by the parties" and is not subject to equitable extensions. Mendoza v. Perez, 754 F. 3d 1002, 1018 (D.C. Cir. 2014) (citing P & V Enters. v. U.S. Army Corps of Eng'rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008) (citing cases)) . 12 Under this clear and controlling precedent, a district court lacks any authority to extend the limitations period for claims governed by Section 2401 (a) . Id.; see also John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134 (2008) (observing that a "jurisdictional" statute of limitations "forbid[s] a court to consider whether certain equitable considerations

12 The Court of Appeals has acknowledged that it has "recently

questioned the continuing viability of this holding in light of

recent Supreme Court decisions" holding that statutes of

limitations in actions against the Government are subject to the

same rebuttable presumption of equitable tolling applicable to

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

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

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

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

(1990)).

However, unless and until the Court of Appeals

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

is bound by the law at it currently exists.

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warrant extending a limitations period") .

Consequently,

Plaintiffs' claims for equitable tolling shall be denied. 13

IV. CONCLUSION

For the foregoing reasons, Defendants' Motion for Partial

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

shall be denied.

September J~ b. 2014

Copies to: attorneys on record via ECF

13 Having so concluded, the Court shall not reach Defendants' alternative argument that the doctrines of equitable tolling based on fraudulent concealment and class action tolling are not properly applied to the facts of this case.
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

)

IN RE: NAVY CHAPLAINCY

)

)

~~~~~~~~~~~~~~~~>

Case No. 1:07-mc-269 (GK)

MEMORANDUM OPINION

Table of Contents I • Background .................................................. 2
A. The Navy Chaplain Corps .................................... 3 B. The Navy's Personnel System ................................ 4 C. Plaintiffs' Claims ......................................... 5 D. Procedural Background ...................................... 7 II. Legal Standard ............................................. 9 A. Standard of Review under Fed. R. Civ. P. 12(b) (1) .......... 9 B. Standing ................................................... 9 C. Mootness .................................................. 11 III. Analysis ................................................. 12 A. "As Applied" Challenges to Alleged Policies ............... 13
1. Faith Group Accession Goals ............................. 13 2. Staffing of CARE Boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 3 . CARE Board Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 O 4. Former Alleged Recruiting Policy ........................ 21 5. Alleged use of Faith Group Categories ................... 23 6. Alleged Dual Systems of Discipline ...................... 23 7. SECNAVINST 1730. 7C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 8. Alleged Policy of a General Protestant Service .......... 29 9. Alleged Policy of Reserving Key Billets ................. 31 10. Alleged Practices Concerning Recalls ................... 32 B. "As Applied" Challenges to Conditions of Chaplain Corps ... 34 C. Challenges to Ad Hoc Actions .............................. 37 1. Alleged Failure to Consider Prior Reports ............... 37
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2. Alleged Interference with Ministries .................... 41 3. Alleged Interference with Prayer ........................ 43 D. Portions of Claims of Specific Plaintiffs ................. 45 1. Statute of Limitations .................................. 46 2. Exhaustion of Administrative Remedies ................... 48 IV. Conclusion ................................................ 52
Plaintiffs are current and former Non-liturgical Protestant chaplains in the United States Navy, their endorsing agencies, and a fellowship of non-denominational Christian evangelical churches. They bring this consolidated action against the Department of the Navy and several of its officials. Plaintiffs allege that Defendants discriminated against Non-liturgical Protestant chaplains on the basis of their religion, maintained a culture of denominational favoritism in the Navy, and infringed on their free exercise and free speech rights.
This matter is before the Court on Defendants' Motion to Dismiss on Jurisdictional Grounds. Upon consideration of Defendants' Motion [Dkt. No. 217], Plaintiffs' Opposition [Dkt. No. 229], Defendants' Reply [Dkt. No. 235], and the entire record herein, and for the reasons set forth below, Defendants' Motion shall be granted in part and denied in part.
I . BACKGROUND
Only a brief recitation of the facts is necessary at this time since the Court has familiarity with the extensive record in
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the case, which includes more than twenty written decisions by Judge Ricardo Urbina when the case was assigned to him, by this Court, and by the Court of Appeals.
A. The Navy Chaplain Corps The Navy employs a corps of chaplains ("Chaplain Corps" or "CHC") whose mission is to provide for the free exercise of religion by members of the Navy, their dependents, and other authorized persons. In re England, 375 F.3d 1169, 1171 (D.C. Cir. 2004) (citation omitted). In accordance with this mission, Navy chaplains provide religious education, counseling, and support to sailors and Marines and advise commanders on religious, moral, and ethical issues. Id. There are over 100 faith groups recognized by the Department of Defense, which the Navy has grouped into four "faith group categories" ( "FGCs") consisting of: Roman Catholic, Liturgical Protestant, Non-liturgical Protestant, and Special Worship. In re Navy Chaplaincy, 697 F.3d 1171, 1173 (D.C. Cir. 2012). The Liturgical Protestant category consists of Protestant denominations that trace their origins to the Protestant Reformation, practice infant baptism, and follow a prescribed liturgy; it includes Lutheran, Episcopal, Methodist, and Presbyterian faiths. In re England, 375 F.3d at 1172; Consolidated Complaint ("Consol. Compl. 11 ) , 6 (b) [Dkt. No. 134] . The Nonliturgical Protestant category is composed of Protestant
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denominations that baptize at the "age of reason" and do not follow a formal liturgy; it includes Baptist, Evangelical, Pentecostal, Bible Church, and Charismatic faiths. In re England, 375 F.3d at 1172; Consol. Compl. ~ 6(c). The Special Worship group includes denominations not covered by the Protestant and Roman Catholic categories; it includes Jewish, Hindu, Buddhist, Muslim, Jehovah's Witness, Christian Science, Mormon, and Unitarian faiths. Chaplaincy of Full Gospel Churches v. England, 454.F.3d 290, 295 n.3 (D.C. Cir. 2006); Consol. Compl. ~ 6 n.5.
B. The Navy's Personnel System Chaplains enter the Navy through a civilian clergy program or a theological student program. Consol. Compl. ~ 44(c). The term "accession" refers to the process of bringing a qualified individual into the Chaplain Corps as a commissioned officer. Thereafter, they are subject to the same personnel system as other naval officers and must be selected for promotion in rank when the needs of the service require. In re England, 375 F. 3d at 1172 (citing 10 U.S.C. § 611(a)). If an officer is considered but not selected for a promotion, he or she is said to have "failed of selection" ("FOS"). Chaplaincy of Full Gospel Churches, 454 F.3d at 293. After failing of selection on two or more occasions, an officer is subject to involuntary separation, known as "selective early retirement." See 10 U.S.C. § 632(a)-(b). However, the Navy may elect to continue an officer on active duty despite two or
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more failures of selection as its needs require. See 10 U.S.C. § 632 (c) (2).
Each of these decisions regarding a naval officer's career promotion, selective early retirement, and continuation on active duty - is made by a "selection board" composed of superior officers who act pursuant to statute and regulations prescribed by the Secretary of Defense. See 10 U.S.C. §§ 611, 612.
c. Plaintiffs' Claims
Plaintiffs' Consolidated Complaint contains 18 Counts, many of which contain various claims challenging current and historical aspects of the CHC's personnel system. The following is a small sampling of their claims.
First, they contend that the faith group categories recognized by the Navy are discriminatory and arbitrary. Consol. Comp1. ~ ~ 33 - 3 8 . In particular, they claim that the categories reflect neither religious demographics nor legitimate similarities or differences among the worship traditions represented.
Second, they allege that in the past (but not since at least 2002), the CHC used religious quotas to apportion chaplain opportunities among various faith groups. Consol. Compl. ~~ 3335. In particular, they allege that policies existed requiring one or two Roman Catholic chaplains on selection boards, and that such policies were designed to "stack" selection board proceedings against Non-liturgical candidates and in favor of Roman Catholic
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and Liturgical Protestant chaplains despite their allegedly declining numbers in the broader population. Consol. Compl. ~~ 57(e)-(g). Defendants deny that such policies ever existed.
Third, Plaintiffs challenge a number of facially neutral personnel practices - both current and historical - that they believe have allowed religious bias to infect selection board outcomes. Plaintiffs claim that the practices, taken together, "enable[] each board's chaplains to ensure that a particular candidate will not be promoted, thus increasing the odds for their preferred (and discriminatory) results." In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013).
Plaintiffs also challenge a practice, which they concede has not existed since 2002, in which "each selection candidate's threedigit 'faith group identifier' code was prominently displayed throughout the selection board process." Consol. Compl. ~ 86. Plaintiffs contend this practice had no purpose other than "to identify a candidate's faith group to the board" for purposes of permitting the board members "to exercise their individual or faith group prejudice for or against other chaplains or faith groups, particularly against Non-liturgical chaplains." Id. ~ 87.
Fourth and finally, Plaintiffs seek relief relating to a variety of specific instances in which they allegedly suffered discrimination and free exercise harm while serving in the Chaplain Corps. See~' Addendum 1 to Consol. Compl. ~~ 12, 37, 41. These
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include occasions in which Plaintiffs claim to have been: (1) retaliated against, criticized, and removed from their posts based on the content of their religious teachings; (2) treated differently from Liturgical chaplains with respect to disciplinary issues and employment benefits; (3) required to officiate at Liturgical services; and/or (4) subjected to general policies that, while not facially discriminatory, disfavored certain aspects of their worship traditions. See generally id. ~~ 1-65.
D. Procedural Background This consolidated case is composed of three cases filed by the same counsel: Chaplaincy of Full Gospel Churches v. England, Civ. No. 99-2945 ("CFGC"); Adair v. England, Civ. No. 00-566 ("Adair"); and Gibson v. Dep't of Navy, Civ. No. 06-1696 ("Gibson") . CFGC and Adair were filed in this Court on November 5, 1999, and March 17, 2000, respectively, and were consolidated for pretrial purposes on September 26, 2000 [Adair Dkt. No. 21]. On April 28, 2006, Plaintiffs' counsel filed Gibson as a separate putative class action in the Northern District of Florida, and that case was subsequently transferred to this District pursuant to 28 U.S.C. § 1404. See Mem. Order, dated August 17, 2006, at 1 [Gibson Dkt. No. 1]. On June 18, 2007, the Court consolidated all three actions, concluding that they raised "substantially similar
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constitutional challenges to the Navy Chaplaincy program." Mem. Order, dated June 18, 2007, at 4 [Dkt. No. 11].
Between 2002 and 2009, the parties conducted discovery, interspersed with collateral litigation and three interlocutory appeals to the D.C. Circuit. At this Court's request, on October 3, 2012, Plaintiffs filed a Consolidated Complaint [Dkt. No. 134] comprised of all the claims at issue in the consolidated case.
On September 4, 2014, this Court denied Plaintiffs' Motion for Class Certification [Dkt. No. 192], and on September 26, 2014, granted Defendants' Motion for Partial Summary Judgment on their statute of limitations defense [Dkt. No. 194] . At the Court's request, the parties filed a Joint Status Report on October 24, 2014, listing the remaining claims as well as those Plaintiffs whose claims should be dismissed in their entirety [Dkt. No. 199]. On November 19, 2014, Plaintiffs filed a Rule 54(b) Motion for Modification or Clarification of the Court's Partial Summary Judgment opinion [Dkt. No. 203]. The Court denied Plaintiffs' Rule 54(b) Motion on February 9, 2016 [Dkt. No. 237].
On February 27, 2015, Defendants filed the present Motion to Dismiss on Jurisdictional Grounds ("Motion") [Dkt. No. 217]. Plaintiffs filed their Opposition on August 3, 2015 ("Opp' n") [Dkt. No. 229] , and Defendants filed their Reply on October 9, 2015 ("Reply") .
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II. LEGAL STANDARD A. Standard of Review under Fed. R. Civ. P. 12(b} (1) As courts of limited jurisdiction, federal courts possess
only those powers specifically granted to them by Congress or directly by the U.S. Constitution. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The plaintiff bears the burden of establishing by a preponderance of the evidence that the Court has subject matter jurisdiction to hear the case. See Shuler v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008). In deciding whether to grant a motion to dismiss for lack of jurisdiction under Rule 12 (b) (1), the court must "accept all of the factual allegations in [the] complaint as true [.]" Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005) (internal quotation marks omitted) (citing United States v. Gaubert, 499 U.S. 315, 327 (1991)). "[W]here necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." See Herbert v. Nat'l Acad. Of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).
B. Standing Article III of the Constitution limits the jurisdiction of federal courts to certain "Cases" and "Controversies." See U.S. Const. art. 3, § 2. " [N] o principle is more fundamental to the
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judiciary' s proper role in our system of government than the

constitutional limitation of federal-court jurisdiction to actual

cases or controversies." Clapper v. Amnesty Int'l USA, 133 S. Ct.

1138, 1146 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S.

332, 341, (2006)). "One element of the case-or-controversy

requirement is that plaintiffs must establish that they have

standing to sue." Id. (internal quotation marks and citation

omitted).

" [T] he irreducible constitutional minimum of standing

contains three elements. First, the plaintiff must have suffered

an injury in fact . . . which is (a) concrete and particularized,

and (b) actual or imminent, not conjectural or hypothetical.

Second, there must be a causal connection between the injury and

the conduct complained of

Third, it must be likely, as

opposed to merely speculative, that the injury will be redressed

by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992) (internal quotation marks, citations, and

footnote omitted) .

Plaintiffs seeking prospective injunctive or declaratory

relief as to future acts must demonstrate that harm resulting from

such acts is "'actual or imminent, not conjectural or hypothetical

. Past exposure to illegal conduct does not in itself show

a present case or controversy regarding injunctive relief . . . if

unaccompanied by any continuing, present adverse effects.'" City

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•.
of Los Angeles v. Lyons, 461 U.S. 95, 102-03 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). Past wrongs have a bearing on whether there is a real and immediate threat of future injury. Id.
c. Mootness
"Simply stated, a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)) (internal quotation marks omitted). The doctrine of mootness is premised upon the notion that " [a] federal court is constitutionally forbidden to render advisory opinions or 'to decide questions that cannot affect the rights of litigants in the case before them.' " Better Gov't Assoc. v. Dep't of State, 780 F.2d 86, 90-91 (D.C. Cir. 1986) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)).
A defendant's voluntary cessation of a challenged practice moots a case only if the defendant shows that "(1) there is no reasonable expectation that the alleged violation will recur and (2) 'interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.'" Reeve Aleutian Airways, Inc. v. United States, 889 F.2d 1139, 1142-43 (D.C. Cir. 1989)) (quoting County of Los Angeles, 440 U.S. at 631). This burden "is a heavy one." Reeve Aleutian Airways, 889 F.2d at 1143.
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III. ANALYSIS Defendants address their challenges to Plaintiffs' remaining
claims in three categories, each of which mirror the categories in the Parties' Joint Status Report Identifying Remaining Claims filed with the Court on October 14, 2014 [Dkt. No. 199]. The categories are: (1) Plaintiffs' "as applied" challenges to alleged Chaplain Corps personnel policies or practices; (2) Plaintiffs' "as applied" challenges to alleged conditions of hostility and bias in the Chaplain Corps; and (3) Plaintiffs' challenges to alleged ad hoc actions against certain Plaintiffs. Mot. at 3. The Court will address each category in turn.
As an initial matter, Plaintiff Chaplaincy of Full Gospel Churches ("CFGC") did not respond to Defendants' Motion and has therefore conceded these arguments. See F.D.I.C. v. Bender, 127 F.3d 58, 67 (D.C. Cir. 1997). CFGC's counsel, who is also counsel for AGC and the individual Plaintiffs, moved to withdraw his appearance as counsel for CFGC on March 19, 2015 [Dkt. No. 220], and this Court granted the motion the following day. See Order Granting Motion to Withdraw [Dkt. No. 221]. No other counsel has been entered on behalf of CFGC. Therefore, Defendants' Motion to Dismiss is granted with regard to CFGC's claims.
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..
A. "As Applied" Challenges to Alleged Personnel Policies or Practices
Plaintiffs challenge several of the Navy's alleged policies or practices relating to accession, personnel management, promotions, and career transition. The Navy has not, at this time, moved to dismiss policies relating to aspects of the promotion and early retirement selection board process, but seeks dismissal of other claims for lack of standing and mootness, as well as for being time-barred. Mot. at 7-8.
1. Faith Group Accession Goals As mentioned previously, accession refers to the process by which an individual becomes a member of the Chaplain Corps. "The accession process includes recruitment, processing [,] and swearing-in to the military service." Opp' n at 34. Plaintiffs allege that from 1986 until 2001 or 2002, the Navy maintained a so-called "Thirds Policy" 1 under which it reserved thirty-five percent of chaplain accessions for Liturgical Protestants, thirtyfive percent for "Non-liturgical faith groups," and thirty percent for "Others," which included Catholics. Mot. at 35-36; Consol. Compl. ,, 33, 35.
1 The Court dismissed Plaintiffs' claim regarding the Thirds Policy for lack of subject matter jurisdiction in 2014. See In re Navy Chapiaincy, No. 7-269, 2014 WL 4378781, at *6-9 (D.D.C. Sept. 4, 2014) .
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While Defendants dispute that such a policy ever existed, they argue that since 2001, "the Navy has accessed chaplain candidates on a best-qualified basis, without any consideration of religious affiliation." Mot. at 8. Plaintiffs deny that the Navy's current practice is faith neutral. Opp'n at 37. Plaintiffs contend that the Navy's accession policy is unconstitutional because any faith group or denominational goals are not based on the Navy's "free exercise needs" (the denominational make-up of the Navy's service members), resulting in arbitrary "denominational preferences." Consol. Compl. ~~ 68-70. Therefore, according to Plaintiffs, "[t]he accession system is not narrowly tailored to achieve the CHC's constitutional purpose and is nothing more than a federal jobs program for clergy." Id. ~ 70.
First, Defendants argue that every individual Plaintiff has successfully accessed into the CHC, and therefore not a single Plaintiff has suffered an injury due to the alleged accession policy. Without an injury, there cannot be standing to challenge the alleged policy. Mot. at 9. Plaintiffs do not deny that the individual Plaintiffs were not harmed directly by the policy. See Opp' n at 41. Rather, Plaintiffs argue that "the CHC' s denominational preference produces twin messages of preference and prejudice" and argue that the policies are "part of the culture of prejudice." Id.
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This argument does not suffice to show injury or standing. Plaintiffs do not show how the alleged messages of preference and prejudice cause injury that is "(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560-61. Plaintiffs' allegation of a culture of prejudice and bias is a separate claim and will be analyzed later in this Opinion. See infra, Section III.B.
Second, Defendants argue that the organizational Plaintiffs CFGC and Association of Gospel Churches ( "AGC") fail to demonstrate standing, either on their own behalf or in a representative capacity. See Mot. at 11-15. An organization may have standing to bring a cause of action on either its own behalf (sometimes referred to as "organizational standing") or on behalf of its members ("associational standing"). Warth v. Seldin, 422 U.S. 490, 511 (1975); People for the Ethical Treatment of Animals v. U.S. Dep't of Agric., 797 F.3d 1087, 1099 (D.C. Cir. 2015).
For an organization to have standing on its own behalf, it must meet the standard requirements of injury-in-fact, causation, and redressability. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). In other words, the Court must ask whether the organization itself has "alleged such a personal stake in the outcome of the controversy as to warrant [its] invocation of federal-court jurisdiction." Id. (internal quotation marks and citations omitted). "A conflict between the defendant's conduct
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and the organization's objectives is not enough to establish standing; the organization must allege that discrete and programmatic concerns are directly [a]ffected by the defendant's conduct." CFGC, No. 99-2945, Memorandum Opinion at 8 [Dkt. No. 30] (citing Nat'l Treasury Emp. Union v. United States, 101 F.3d 1423 (D.C. Cir. 1996). The asserted injury must be "concrete and demonstrable," rather than "simply a setback to the organization's abstract social interests." Havens Realty Corp., 455 U.S. at 379.
AGC asserts that it has standing because CHC's "policies and practices which reject AGC candidates (and also impact [] AGC promotions . .) impair and in fact preclude AGC's ability to represent its member churches to the military, causing injury to AGC." Opp'n at 39. "AGC's mission is to represent its member churches to the military by seeking and endorsing qualified candidates to the chaplaincy and supporting them in their continued representation once they are on active duty or in the reserves." Opp'n at 38-39.
In 2000, Judge June Green ruled in CFGC (which was later consolidated with Adair and Gibson to form the present case) that CFGC did not have standing on its own behalf. CFGC Mem. Op at 10. CFGC had characterized its primary function as the sponsorship of clergy. Id. CFGC also claimed that it had to "divert sizable resources to minimize the effects of the Defendants' alleged discrimination, becoming a counselor and employment agency for
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CFGC Navy chaplains." Id. at 9. The Court found that providing such assistance to the chaplains was tangential to CFGC's primary function and that Defendants' alleged discriminatory activity was "not at 'loggerheads' with the group's mission." Id. at 10. Therefore, the Court concluded that CFGC had not suffered injury in fact. Id.
Plaintiffs have not shown how AGC is different from CFGC, nor have they explained why this Court's prior holding is not also applicable to AGC. AGC's only attempt to distinguish itself from CFGC is its claim that CFGC did not name specific candidates who were rejected, while AGC has. Opp'n at 40. This distinction does not touch on the core dispute: whether AGC' s "discrete and programmatic concerns are directly [a] ffected by" CHC' s alleged discrimination. CFGC Mem. Op. at 8. Consequently, AGC's identification of specific members who were rejected is more appropriately considered in the associational standing analysis. For these reasons, the Court finds that AGC does not have standing to sue on its own behalf.
An organization has associational standing when: "(1) 'its members would otherwise have standing to sue in their own right;' (2) 'the interests it seeks to protect are germane to the organization's purpose;' and (3) 'neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.'" Ctr. for Sustainable Econ. v. Jewell,
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779 F.3d 588, 596 (D.C. Cir. 2015) (quoting Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977)). Defendants argue that CFGC and AGC fail to satisfy the first and third prongs.
Defendants contend that AGC has failed to identify "at least one specifically-identified member" who has suffered an injuryin-fact. Mot. at 14 (quoting American Chemistry Council v. Dep't of Transportation, 468 F.3d 810, 820-21 (D.C. Cir. 2007)). In response, Plaintiffs submit the Declaration of Captain Steven D. Brown, the current President of AGC ("Brown Deel.") , Dkt. No. 22716, who identifies several individuals that AGC endorsed but were rejected by CHC. See e.g., Brown Deel. ~ 11 (discussing the unsuccessful applications of Isaac Toliver and James Block) .
Although Plaintiffs have identified certain individuals who were unsuccessful in their applications to join the Chaplain Corps, at no point does the Brown Declaration or the Opposition allege that the individuals were unsuccessful as a result of the alleged faith group accession policies that are at issue. Therefore, while Plaintiffs have shown that the individuals they identify may have suffered an injury, they have not alleged causation sufficient for the Court to find that the individuals would have standing in their own right. AGC fails to satisfy the first prong of associational standing. 2
2 Because the Court finds that AGC lacks associational standing due to the first prong of the test -- "its members would otherwise
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For the aforementioned reasons, the Court holds that neither
the individual Plaintiffs nor the organizational Plaintiffs have
standing to challenge the Navy's faith group accession goals.
2. Staffing of CARE Boards
Count 2 of the Consolidated Complaint alleges that the Navy
had "an unconstitutional religious hierarchy and preference
system" which it implemented through denominational and FGC goals. Consol. Compl. ~~ 40-63. One sub-allegation of Count 2 is that the
Navy used "a set of favored denominations for its [Chaplain
Appointment Recall and Eligibility ("CARE")] Board memberships who
tended to approve those most like themselves and reject or limit those not like themselves." Id. ~ 44(g).
Insofar as the~ 44(g) claim is limited to the period of the
alleged Thirds Policy, Defendants argue this claim is moot and
should also be dismissed for lack of standing. Mot. at 16. Should
the scope of the claim be construed to apply post-2001, Defendants
also argue that it should be dismissed for lack of standing, as
neither the individual Plaintiffs nor the organizations have
have standing to sue in their own right" -- it need not reach the third prong - - "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." The Court does note, however, that Plaintiffs' only response to Defendants' challenge relative to the third prong was to summarily state that"' [n]either the claim asserted nor the relief requested requires the participation' of either AGC candidates or chaplains in this lawsuit." Opp' n at 41. By failing to address the substance of Defendants' contentions, Plaintiffs have conceded Defendants' argument that AGC fails to satisfy the third prong.
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standing. Id. Plaintiffs fail to reply to either of Defendants' mootness or standing arguments, and have therefore conceded them. Accordingly, the claim associated with~ 44(g) is dismissed.
3. CARE Board Procedures Counts 3 and 4 of the Consolidated Complaint challenge, inter alia, the procedures employed by the CARE Boards. Consol. Compl. ~~ 71, 81-84. These procedures allegedly "grant unlimited discretionary power to chaplains with no accountability and no effective guarantees [that] the power will be used for neutral, secular and non-ideological purposes." Id. ~ 82. To the extent this claim is applicable to the time period of the alleged Thirds Policy, Defendants argue that the claim fails for mootness and lack of standing, and to the extent it applies post-2001, Defendants argue it fails for lack of standing. Mot. at 17. Defendants' lack of standing argument mirrors its prior arguments in Sections A.l and A.2, namely that individual plaintiffs lack any injury and organizational plaintiffs lack direct or representational standing. Id. Plaintiffs fail to respond to Defendants' arguments and the Court finds that they have been conceded. Therefore, the Court dismisses Plaintiffs' claim regarding CARE Board policies found in Counts 3 and 4.
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4. Former Alleged Recruiting Policy Count 15 of the Consolidated Complaint challenges an alleged recruiting policy under which chaplains were required to speak positively about the Chaplain Corps. See Consol. Compl. ~~ 2071 7. Plaintiffs allege that the policy was implemented via two directives issued in 2001. Id. ~ 212. Plaintiffs refer to the policy as a "former policy" and discuss it in the past tense, although Plaintiffs do not state when the policy ceased to be in effect. Id. ~~ 207-217. Plaintiffs allege that the purpose of the policy was to "maintain the current irrational and disproportionate chaplain imbalance which plaintiffs allege constitutes an endorsement of religion forbidden by the Establishment Clause," and in addition, that it censored Plaintiffs' speech. Id. ~~ 213(b), 216. Defendants argue that Plaintiffs have failed to identify a single plaintiff who has ever been affected or injured by the alleged policy, or how this Court could redress such an injury, and that as a result, Plaintiffs lack standing. Mot. at 18-19. In response, Plaintiffs fail to identify any specific Plaintiffs who were harmed by the al.leged policy. Instead, Plaintiffs argue, without citation, that "[i]t is Black Letter Law a plaintiff need not wait until he is injured to challenge a policy unconstitutional on its face." Opp'n at 42. This is directly contrary to Supreme Court precedent stating that "the irreducible constitutional
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minimum of standing contains three elements," where the first

element is an "injury in fact

. which is (a) concrete and

particularized, and (b) actual or imminent, not conjectural or

hypothetical." Lujan, 504 U.S. at 560-61 (internal quotation

marks, citations, and footnote omitted).

Plaintiffs also posit that if any "CHC policy violates the

Establishment Clause and a plaintiff is subject to that policy,

their Establishment Clause rights have been violated," Opp' n at

42, apparently suggesting that injury is automatic if a plaintiff

is subject to an allegedly unconstitutional policy. Plaintiffs

rely on Chaplaincy of Full Gospel Churches v. England ("CFGC") in

support of this theory. 454 F.3d 290, 304 (D.C. Cir. 2006). In

that case though, our Court of Appeals was discussing irreparable

injury for purposes of preliminary injunction analysis, not

standing. Indeed, the Court of Appeals commented in a footnote

that the "conclusion presupposes

. that the party has standing

to allege such a violation." Id. at 304 n.8.

Plaintiffs have failed to identify any plaintiffs who were

injured by this alleged policy and to identify any injuries that

were suffered. In addition, Plaintiffs have failed to respond to

Defendants' redressability argument. Accordingly, Plaintiffs do

not have standing to challenge the alleged recruiting policy

requiring chaplains to speak positively of the Chaplain Corps and

their claim is dismissed for lack of jurisdiction.

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5. Alleged Use of Faith Group Categories in Personnel Management and Staffing Decisions
In Count 1 of the Consolidated Complaint, Plaintiffs challenge the Navy's categorization of Faith Group Categories. Plaintiffs allege that the parameters of the FGCs, in which the Roman Catholic FGC has only one denomination while the "NonLiturgical Protestant" FGC contains a wide spectrum of denominations, are arbitrary and capricious. Consol. Compl. ~ 36. The classification allegedly facilitates religious favoritism toward some groups and "hides the CHC' s bias against the Nonliturgical faith groups (and other conservative liturgical faith groups) in accessions, promotions, career opportunities, assignments, and retentions." Id. ~ 37.
Defendants argue that Plaintiffs have not shown that they have standing to challenge the FGCs because they have demonstrated neither injury nor redressability. Mot. at 20. Plaintiffs respond that the Court has jurisdiction over the challenge, but fail to explain why, omitting any discussion of standing, injury, or redressability. Plaintiffs have again conceded this argument and the Court finds that they lack standing to challenge the categorization and use of FGCs.
6. Alleged Dual Systems of Discipline and Administration
Count 7 of the Consolidated Complaint alleges that the Navy has created an unconstitutional culture of hostility toward Non-
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liturgical chaplains. Consol. Compl. ~~ 141-152. In furtherance of that culture, Plaintiffs allege that the Navy has established two systems of discipline: one for Liturgical traditions and a second, harsher system for Non-liturgical traditions. Id. ~ 148. In the Consolidated Complaint, Plaintiffs provide three examples of individual Plaintiffs who were harmed by the alleged dual systems of discipline. Id. ~ 148(a)-(c) (discussing claims of plaintiffs Thompson, Tostenson, and Klappert) .
Defendants argue that the claims of the three Plaintiffs who have alleged harm under the dual-disciplinary systems are timebarred, and that Plaintiffs also lack standing. This Court has previously held that the six-year statute of limitations of 28
u.s.c. § 2401(a) is applicable in this case and has asked the
parties to submit a list of individuals whose claims, as a result, are time-barred. See In re Navy Chaplaincy, F. Supp. 3d 249 (D.D.C. 2014) (Memorandum Opinion granting Defendants' Motion for Partial Summary Judgment) .
On October 24, 2014, the Parties submitted a list of individual Plaintiffs whose claims should be dismissed. See Dkt. No. 199. Plaintiffs Thompson and Tostenson, who were part of the Gibson case filed in 2006, were on that list, and Plaintiffs have offered no argument that their claims are not time-barred. While Plaintiff Klappert was not included on that list, all activities relating to him that are alleged in the Consolidated Complaint
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appear to have occurred before April 28, 2000, the statute of limitations cut-off for the Gibson plaintiffs. Defendants argue that Klappert's dual-disciplinary-systems claim is therefore timebarred, and Plaintiffs do not dispute it.
In their Opposition, Plaintiffs mention four other individual Plaintiffs who allegedly suffered harm under the dual-disciplinary system. Opp'n at 43-44. However, nothing in the Consolidated Complaint suggests that these Plaintiffs ever encountered the Navy's disciplinary system nor do Plaintiffs specify any injuryin-fact suffered by these individuals. Id. at 44. The only harm discussed is that Liturgical and Catholic chaplains, who had been disciplined in the past for reasons unrelated to Plaintiffs, retaliated against Plaintiffs due to their religion. Id. Such harm flows from retaliation, not the Navy's disciplinary system.
In sum, there are no remaining Plaintiffs who claim to have been injured under the alleged dual-disciplinary systems. The claims of the three individual Plaintiffs mentioned in the Consolidated Complaint are time-barred, and the remaining Plaintiffs have fai'led to allege any injury for purposes of standing. In addition, Defendants argue that Plaintiffs have not satisfied the causation and redressability prongs of standing, and Plaintiffs failed to respond to this argument in their Opposition, thereby conceding it. See Mot. at 23-24; Opp'n at 43-44.
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Plaintiffs' claims regarding an unconstitutional dual-disciplinary

system are dismissed.

7. SECNAVINST 1730.7C

Count 9 of the Consolidated Complaint alleges that Secretary

of the Navy Instruction 1730.7C ("SECNAVINST 1730.7C"), which was

issued on February 21, 2006, "unconstitutionally established a

Navy religion by defining acceptable and unacceptable religious

words and concepts for chaplains to speak at ceremonies or other

public events." Consol. Compl. ~ 167. SECNAVINST 1730. 7C was

rescinded and replaced by SECNAVINST 1730.7B in August 2006, and

SECNAVINST

1730.7B

has

since

been

superseded by

SECNAVINST 1730.7D. See Mot. at 25.

Defendants argue that no remaining Plaintiffs claim to have

been injured by SECNAVINST 1730.7C, and therefore none have

standing to challenge it. Id. In addition, Defendants argue that

any claims for prospective relief are moot, as the policy has not

been in effect for almost ten years. Id.

In response to the Navy's argument, Plaintiffs state that

numerous individual Plaintiffs, including chaplains De Marco,

Rush, Stewart, Thyrion, and Wilder, have reported "being penalized

by the CHC's underlying hostility to Plaintiffs' religious speech

which 1730.7C formalized as an official policy." Opp'n at 45.

Because the Parties have already agreed that Thyrion's claims are

time-barred, the Court need not consider them here. See Joint

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Status Report Identifying Remaining Claims and Individual Plaintiffs Whose Claims Should Be Dismissed at 5 [Dkt. No. 199).
Plaintiffs' opposition suffers from a logical flaw: Even if SECNAVINST 1730. 7C supported this hostility toward Plaintiffs' religious speech, it does not logically follow that therefore all harm suffered as a result of hostility toward religious speech was also a r e s u l t of SECNAVINST 1 73 O. 7C. Contentions that the Navy interfered with the above named chaplains' religious speech are not sufficient to show injury as a result of SECNAVINST 1730.7C. Plaintiffs have not stated that any of the chaplains were harmed by SECNAVINST 1730.7C, and indeed the facts suggest that most of them had already separated from the Navy at the time of SECNAVINST 1730.7C's implementation. See e.g., Consol. Compl., Addendum 1 ~ 49 (Rush joined Air Force Reserve in 1996); Id. ~ 61 (Wilder nonselected in 1999 and 2000 and was forced to retire due to failure of selections); Id. ~ 10 (suggesting De Marco retired in or around 1998) .
AGC also challenges, "on behalf of its chaplains, the Navy's failure to provide effective guarantees the policy will not be reinstituted." Opp'n at 45. AGC fails to show that it has standing in its own right or that its members have standing so as to provide a foundation for representational standing.
Plaintiffs also state that the Navy has failed to meet the criteria for the voluntary cessation doctrine, but do not explain
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how or why. Voluntary cessation of a challenged practice moots a case only if (1) "there is no reasonable expectation . . that the alleged violation will recur," and (2) "interim relief or events have completely and irrevocably eradicated the effects· of the alleged violation." Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (quoting Los Angeles County v. Davis, 440 U.S. 625, 631 (1979)).
Plaintiffs do not allege that the Navy is even likely to consider reinstatement of SECNAVINST 1730.7C. "[T]he mere power to reenact a challenged [policy] is not a sufficient basis on which a court can conclude that a reasonable expectation of recurrence exists. Rather, there must be evidence indicating that the challenged [policy] likely will be reenacted." Id. (emphasis added) (quoting Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997)). Plaintiffs have offered no such evidence.
With regard to the second prong of the test, Plaintiffs have alleged no ongoing effects of SECNAVINST 1730.7C. AGC challenges the Navy's failure to provide a guarantee that the policy will not be reinstated, but an injunction or order by this Court declaring SECNAVINST 1730.7C illegal "would accomplish nothing--amounting to exactly the type of advisory opinion Article III prohibits." Id. Larsen prohibits such an advisory declaration.
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\~.
For the foregoing reasons, the Court concludes that Plaintiffs lack standing to challenge SECNAVINST 1730.7C and also finds the Plaintiffs' SECNAVINST 1730.7C claims to be moot.
8. Alleged Policy Requiring a "General Protestant Service"
Count 10 of the Consolidated Complaint alleges that "the Navy has historically tried to establish[] a de facto liturgical or 'high church' 'General Protestant' religion," in violation of the First Amendment of the United States Constitution. Consol. Compl. ~ 173. Plaintiffs allege that the Navy had a policy mandating liturgical "General Protestant" services, to the detriment of Nonliturgical personnel. Id.
Defendants argue that this claim fails for lack of standing. Mot. at 26-30. In addition, Defendants also argue that the factual allegations fail to suggest that a policy existed, and instead reflect situation-specific decisions by Navy command. Id. 26-27. Plaintiffs do not contend that the Navy promulgated an official policy. Instead, they allege that the facts, taken together, are indicative of a de facto policy. Consol. Compl. ~ 173. Whether such an unofficial policy exists is an issue of fact. In a motion to dismiss, the Court must "accept all of the factual allegations in [the] complaint as true [.] " Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005)
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(internal quotation marks omitted) (citing United States v. Gaubert, 499 U.S. 315, 327 (1991)).
Defendants state that no Plaintiff alleges any actual injury attributable to the alleged policy, and therefore Plaintiffs lack standing. Id. at 27. Plaintiffs state that the injury occurs when a chaplain is forced to conduct a service contrary to his theology, in violation of the First Amendment. Opp'n at 45. Plaintiffs also provide examples of two chaplains who suffered adverse career consequences, one as a result of his refusal to perform a Liturgical service and the other as a result of "his emphasis on Christ. /1 Id. at 45-46. Defendants do not deny the injuries as such, but focus on their contention that no policy existed. The Court finds that Plaintiffs have sufficiently establishing an injury for purposes of standing. 3
Defendants also argue that Plaintiffs have not shown redressability for this claim. Specifically, Defendants state that Plaintiffs allege "no adverse action that might conceivably be redressed through an award of remedial relief, and there is no basis for prospective relief on these allegations given their command-specific nature. /1 Mot. at 29-30. The latter half of
3 Defendants state that the specific incidents underlying the claims of three of the Plaintiffs - Belt, Wilder, and Bailey occurred outside of the applicable limitations period. Mot. at 29. Plaintiffs do not refute it and have therefore conceded this argument. Accordingly, the Count 10 claims of Plaintiffs Belt, Wilder, and Bailey are dismissed.
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Defendants' argument relies on a finding that the alleged actions are command-specific, rather than indicative of Navy policy, which is a factual finding ill-suited for a motion to dismiss.
Despite the weakness of Defendants' argument, Plaintiffs provide the Court with no guidance as to what relief, either prospective or remedial, could address their claim. The entirety of Plaintiffs' redressability response is that the "Court can provide a remedy to those injured by their Liturgical superiors or the CHC' s indifference." Opp' n at 46. Such an assertion lacks specificity and is too general to establish redressability. For the foregoing reasons, the Court finds that, although Plaintiffs have shown an injury-in-fact, they have not shown redressability and therefore do not have standing to challenge the alleged policy requiring a Protestant service.
9. Alleged Policy of Reserving Key Billets for other Faith Group Categories
Count 2 of the Consolidated Complaint contains several subclaims, including the claim that the Navy had a policy and practice of reserving "key" billets - defined by Plaintiffs as the 15 key decision-making positions - for Protestant and Catholic chaplains. Consol. Compl. ~~ 54-63; see also Capt. Larry Ellis Memorandum to Chief of Chaplains, January 25, 1995 ("Ellis Report") [Dkt. No. 135-14] .
.., 31 -

Defendants argue that Plaintiffs have provided no evidence supporting the existence of a policy. Mot. at 30. Defendants also argue that this claim fails for lack of standing, as Plaintiffs have shown neither injury-in-fact nor redressability. Id. Plaintiffs have not identified any chaplains who were eligible for the key billets but were denied the positions, nor have they explained how the Court could provide prospective or remedial relief. Id. at 33-34.
Plaintiffs failed to respond to Defendants' standing arguments, and have therefore conceded them. Accordingly, Plaintiffs' claim challenging an alleged Navy policy reserving key billets for certain faith groups is dismissed for lack of standing.
10. Alleged Practices Concerning the Recall of Certain Chaplains
Count 5 challenges the Navy's alleged policy giving preference to Catholics and Liturgical chaplains when selecting Navy Reserve chaplains for recall. Consol. Compl. ~~ 123-31; see also id. ~~ 46, 101 (similar claims interspersed in Counts 2 and 4). Defendants deny that such a policy or pattern ever existed, noting that Plaintiffs identify only four such recalls. Mot. at 35. Defendants also contend that Plaintiffs have not shown injury as a result of the recalls or the recall policy, nor have they shown redressability.
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\
Defendants state that none of the remaining forty-one

Plaintiffs have alleged that he or she has suffered harm from the

recall of a Roman Catholic or Liturgical chaplain from Reserve

duty. Id. at 36. To the extent that Plaintiffs might allege that

the harm results from a message of preference, Defendants argue

that our Court of Appeals' decision in 2008 has foreclosed such an

argument. Id. at 37 (citing In re Navy Chaplaincy, 534 F.3d 756

(D.C. Cir. 2008)). In that case, the Court held that such a

message, unaccompanied by actual employment discrimination, was

insufficient to satisfy the injury-in-fact element of standing. In

re Navy Chaplaincy, 534 F.3d at 760, 762-65.

Plaintiffs respond that Defendants' act of "admitting there

was some impact

admits there was an injury. /1 Opp' n at 47.

Plaintiffs provide no citation for the proposition that impact is

akin to injury. The test for standing requires an injury, not

merely an impact. See Lujan, 504 U.S. at 560-61. Plaintiffs argue

that there is no de minimis exception to the Establishment Clause,

see id, at 46, but Defendants are not arguing that the injury is

de minimis - they are arguing that there is no injury at all.

Plaintiffs point to Commander Lyle, a Catholic, as an example

of an illegal recall, stating that his recall has affected numerous

promotion opportunities since 2001 and has been "a barrier to being

able to compete for the legally available authorizations. /1 Id.

at 47. Even so, Plaintiffs fail to identify a single plaintiff

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whose promotion or recall opportunities were affected by Commander Lyle's recall. Plaintiffs point to recalled Captains Vieira (a Liturgical Protestant) and Rock (a Catholic) as "notorious career destroyers," but do not allege harm stemming from their recall, let alone which Plaintiffs were harmed. Id. That Vieira and Rock allegedly used their command positions to harm Plaintiffs does not mean that the very act of recalling Vieira and Rock caused injury.
In addition to their injury argument, Defendants argue that Plaintiffs have failed to show how this Court could redress any injury they might have suffered. Plaintiffs' only response is that this Court "can devise a remedy to make Plaintiffs affected by Recalls whole." Opp'n at 47. As previously discussed, such cursory statements are not sufficient to establish redressability. Accordingly, the Court finds that Plaintiffs have not satisfied the injury-in-fact or redressability prongs of standing.
B. "As Applied" Challenges to Conditions of the Chaplain Corps.
Counts 7 and 8 of the Consolidated Complaint allege that the Navy has a culture of bias and hostility toward Non-liturgical chaplains. 4 Consol. Compl. ~~ 141-52 (Count 7), 153-64 (Count 8). Defendants allege that these counts are broad, vague, and
4 Defendants addressed the alleged culture of bias and the alleged culture of hostility claims separately, but Plaintiffs responded to the claims jointly. Given the similarity of the claims, Defendants' arguments, and Plaintiffs' opposition, the Court will address them jointly as well.
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conclusory, and are not limited to a single "transaction or occurrence" - -or even a set of transactions and occurrences- -as required by Federal Rule of Civil Procedure lO(b). Mot. at 38. As a result of the Counts' conclusory nature and Plaintiffs' failure to allege discrete actions or policies, Defendants also argue that Plaintiffs' allegations do not satisfy the injury-in-fact and redressability requirements of standing. Id.
The thrust of Defendants' argument is that no Plaintiff can establish that he or she sustained any injury as a result of the alleged culture of bias and hostility, rather than as a result of a more specific action or policy. Id. 39-40. For example, Defendants contend that a chaplain who was non-selected for promotion would not be injured by an alleged culture of bias, but by the decision of the selection board. And a chaplain who suffered retaliation by a supervisor would not be injured by a culture of hostility, but by the actions of the supervisor. Id. at 40.
Plaintiffs respond by outlining instances of alleged harms against plaintiffs and other individuals, such as: "religious persecution and oppression from CAPT Buchmiller" against chaplains, congregants, civilian volunteers, and chapel workers; a "racially biased, career ending fitness report" against a nonPlaintif f individual; the allegation that Captain Young "destroyed the careers of all evangelicals while unabashedly promoting and advancing his fellow Catholic chaplains at the expense of [four
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Plaintiffs]"; and instances of retaliation. See Opp' n at 51-52. While these instances of alleged harm, if true, might be problematic, Plaintiffs fail to show how and what harms stem from the Navy's "culture." In other words, Plaintiffs do not identify injuries-in-fact that are a result of the amorphous "culture," rather than specific actions.
Plaintiffs also fail to specify what remedies the Court could provide to any injuries resulting from the alleged cultures of bias and hostility. Defendants argue that an injunction prohibiting the continuation of a culture of bias or a declaratory judgment finding such a culture to be unconstitutional would be too vague and ill-defined to provide a remedy. Mot. at 40, 43. Plaintiffs' only responses are two general statements that "[a] court can remedy Plaintiffs ['] injuries and harms, and protect AGC's future chaplains from such abuse," Opp'n at 53, and that the "Complaint describes Plaintiffs' injuries by this culture and the court can provide a remedy." Opp'n at 55. Such responses offer no specificity or detail as to the remedies Plaintiffs seek and fail to substantively respond to Defendants' argument.
The absence of a causal relationship between the injuries alleged and the alleged culture of bias and hostility, as well as the failure to identify a single potential remedy that would redress Plaintiffs' injuries, leads the Court to conclude that
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Plaintiffs have failed to establish standing to challenge the alleged cultures of bias and hostility.
C. Challenges to Ad Hoc Actions Against Certain Plaintiffs The final category of claims that Defendants challenge consists of claims alleging ad hoc actions against certain Plaintiffs. Defendants argue that certain claims fail for jurisdictional reasons including untimeliness, lack of standing, and mootness. Mot. at 43.
1. Alleged Failure to Consider Prior Officer Fitness Reports
Count 4 of the Consolidated Complaint alleges that many aspects of chaplain selection board systems violate the First and Fifth Amendments, as well as the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq. Consol. Compl. ~~ 73-103. Section D of Count 4 discusses evidence of religious discrimination in chaplain promotions, including a claim that promotion board results show a distinct bias and hostility toward Non-liturgical chaplains with prior military service. Id. ~ 102.
Several Plaintiffs served in the military prior to being commissioned as chaplains, and as a result, have fitness reports that predate their tenure as chaplains. See, e.g., Addendum 1 ~ 60 (claims of James Weibling). Plaintiffs' allegation is that the promotion boards failed to consider fitness reports from Plaintiffs' military service before they became chaplains. Consol.
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Compl. ~ 102. Defendants argue that Plaintiffs lack standing to bring this claim because they neglect to allege an injury under the Constitution or RFRA.
The Complaint does not allege that Non-liturgical chaplains were treated differently than other chaplains with regard to consideration of prior fitness reports. Mot. at 44; Consol. Compl. ~ 102. According to Plaintiffs' Opposition, 27 Plaintiffs did not have prior fitness reports considered, which "lays out a disparate impact claim for the Non-liturgical chaplains and provides the basis for [Count 4's] Establishment and Due Process claims concerning the challenged selection board policies and results." Opp'n at 55. Plaintiffs fail to identify which individuals' prior fitness reports were not considered and what the resulting injury was.
Defendants argue that, of the Plaintiffs who allege prior commissioned service, only two (Rush and Cason) allege any facts that would suggest they were injured by a failure to consider their prior fitness reports. Mot. at 45. Plaintiffs do not dispute that no Plaintiffs other than Rush and Carson allege any supporting facts, with the sole exception of Plaintiff Weibling. Opp'n at 5556.
Plaintiff Carson alleges only that the Navy turned ~her prior military service into a detriment and liability," which Defendants argue is too conclusory to be credited as true. Mot. at 45-46
- 38 -

•.
(citing Addendum A ~ 9). In addition to being conclusory, the allegation that her prior service was a "liability" suggests- contrary to Plaintiffs' other allegations--that her fitness reports were in fact considered.
Similarly, Plaintiff Weibling alleges that the Navy considered his prior service a liability without further elaboration. Addendum A~ 60. In their Opposition, Plaintiffs state that Weibling "was told his small number of CHC fitness reports was a reason for his non-selection," but provide no citation or support for this allegation. Opp'n at 56. The Court agrees that Carson and Weibling's claims are too vague and conclusory to find an injury-in-fact.
Plaintiff Rush alleges that the Navy "counted his prior line officer service to place him before the chaplain promotion board, then disregarded his fitness reports as a line officer . Because the other chaplains had more reports as chaplains, he was non-competitive for promotion." Addendum A ~ 49. Unlike Weibling and Carson, Rush's allegation is detailed and supports Plaintiffs' claim that prior fitness reports were not considered. However, there is no information identifying the source of the information that Rush's prior fitness reports were disregarded.
As evidence of disparate treatment, Plaintiffs point to the 1997 Memorandum for the Chief of Naval Personnel from Captain J.N. Stafford ("Stafford Report"), Dkt. No. 132-19. The Stafford Report
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examined the failure to promote Lieutenant Commander Aufderheide (who is not a plaintiff) and concludes that the failure to promote was a result of a discriminatory evaluation by the FY-97 and FY-98 Selection Boards. Id. The Stafford Report includes a Performance Assessment chart listing the total number of "B" and "C" grades received by the selectees from both Selection Boards and Lieutenant Commander Aufderheide.
Two individuals on the Performance Asse.ssment chart have 30 "B" grades--Liturgical chaplains H. Griffith and Alan Baker. Plaintiffs allege, without any citation, that such a large number of grades was not possible in Griffith and Baker's time with the Chaplain Corps alone. Opp'n at 56. Plaintiffs imply that prior fitness reports for Baker and Griffith must have been considered in order for them to have 30 Bs, otherwise they would have had less.
Plaintiffs provide no evidence regarding how long Griffith and Baker were with the Chaplain Corps and do not explain how they reached the conclusion that 30 Bs were not possible based on their tenure with the Chaplain Corps alone. While it is true that most individuals listed on the Performance Assessment Chart have well under 30 grades and that those individuals with 30 or more grades are outliers, without more information or evidence, it is purely speculative to conclude that this is due to the inclusion of prior fitness reports.
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Even taking as true Rush's allegation that his prior fitness reports were not considered, Plaintiffs still have not provided sufficient evidence that the prior fitness reports of Catholic and Liturgical chaplains were considered, and therefore have not shown a disparate impact. Plaintiffs' conclusion that the prior fitness reports of Griffith and Baker were considered is unsupported. Even if they were considered, Plaintiffs' own pleadings that the prior service of Carson and Weibling was detrimental to their promotion prospects suggests that their prior service was in fact considered. Finally, Defendants argue that Rush's claim is outside the limitations period, as he was considered for promotion in 1993, well before the April 28, 2000 cutoff for Adair claims. Plaintiffs did not respond to this argument and thus, have conceded it.
For all the foregoing reasons, the Court finds that Plaintiffs have failed to establish an injury-in-fact caused by disparate consideration of prior fitness reports and therefore lack standing. In addition, the Court finds Plaintiff Rush's claim to be time-barred.
2. Alleged Interference with Certain Plaintiffs' Ministries
Counts 7 and 10 of the Consolidated Complaint have, interspersed throughout them, allegations of several remaining Plaintiffs that the Navy interfered with their respective ministries, in violation of the Establishment, Free Exercise, Free
- 41 -

Speech, and Due Process clauses of the Constitution. Consol. Compl. ~~ 150-52, 162, 174-76. Defendants argue that many of these claims are time-barred and that Plaintiffs lack standing because they cannot show injury or redressability. Mot. at 47.
The claims of Plaintiffs Belt and Wilder (Adair) and Plaintiff Bailey (Gibson) are time-barred, Defendants argue, as they accrued before their respective March 17, 1994, and April 28, 2000, cutoffs. Id. at 48. Plaintiffs do not argue otherwise and therefore the Court dismisses the claims of these three plaintiffs for interference with their ministries.
For the remaining Plaintiffs, Defendants argue that they have shown no injury attributable to the alleged interference with their respective ministries, or how the Court could remedy any injuries. Mot. at 48. Defendants argue that the remaining Plaintiffs' claims either do not allege an injury or are too conclusory to establish standing. Mot. at 48-49.
The Court agrees that Plaintiffs DeMarco and Gordy make no allegation of interference with their ministries, Addendum A ~~ 10, 18, and that Plaintiff Dufour's statement that his "command chaplain undermined [his] ministry and career," id. ~ 13, is too conclusory to support standing. While Plaintiff Stewart says that he was told he was "not liturgical enough," he does not state that this interfered with his ministry. Id. ~ 52. In their Opposition,
- 42 -

Plaintiffs do not identify any additional injuries or elaborate on Plaintiffs' claims. See Opp'n 56-57.
Plaintiffs have failed to identify any Plaintiff who claims an injury as a result of interference with his or her ministry and whose claim is not time-barred. Accordingly, Plaintiffs have failed to establish standing to bring this claim.
3. Alleged Interference with Prayer Count 9 of the Consolidated Complaint claims that the Navy discriminates against Non-liturgical chaplains by interfering with their free speech rights and interfering with their form of prayer. Consol. Compl. ~~ 165-71. The Consolidated Complaint identifies six Plaintiffs by name who were allegedly harmed by interference with their prayers. The claims of two of these Plaintiffs, Johnston and Thyrion, have already been determined to be time-barred in their entirety. Mot. at 50 n. 23. With respect to the four remaining Plaintiffs, Defendants argue that none of their "allegations of interference suggest the injury-in-fact or potential redress necessary to bring the particular claims based on such allegations within the Court's subject-matter jurisdiction." Mot. at 50. Plaintiffs Belt, Rush, and Torralva fail to allege any interference whatsoever with their prayer. Addendum A ~~ 4, 49, 54. Plaintiff DeMarco alleges that he was criticized for ending his prayers "in Jesus name." Id. ~ 10. When he continued to pray
- 43 -

"in accordance with his beliefs and religious tradition . . . the Liturgical command chaplain rated him in a way that made him noncompetitive for promotion." Id. In DeMarco's deposition testimony, he stated that, after the fitness report rating him, but prior to being considered for promotion, he submitted a request for retirement that was approved. See Deposition of Gregory DeMarco, Exhibit I, 116-18 [Dkt. No. 217-9] ("DeMarco Dep."). The fact that he retired prior to consideration of his promotion is evidence, Defendants argue, that any criticism of his prayer could not have affected his promotion or his career. Mot. at 51.
Defendants' argument overlooks the fact that the criticism need not affect his promotion to be injurious to his career. Indeed, DeMarco states that because he thought the fitness reports would prevent him from being promoted and that his career was effectively over, he was motivated to retire. DeMarco Dep. at 11819.
Plaintiff Stewart, discussed above in relation to Count 10 (interference with his ministry) , while not named in Count 9 regarding interference with his prayer, does allege that he was reprimanded for praying "in Jesus' name" and that after concluding a prayer with "I pray in the name of my Lord and my Savior," he was relieved of his duties. Addendum A ~ 52. The allegations of Plaintiffs DeMarco and Stewart are sufficient to show injury as a result of interference with prayer.
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Defendants also question the Court's ability to redress Plaintiffs' injuries, but provide no explanation or support for that argument. See Mot. at 50. In turn, Plaintiffs failed to respond to it in their Opposition. See Opp'n at 57-58. Given the paucity of Defendants' argument, the Court is not willing to find the argument conceded.
The Consolidated Complaint contains several examples of potential remedies for the alleged injuries Plaintiffs suffered as a result of interference with their prayers: a Declaration by the Court that the Navy discriminates against Plaintiffs' free speech; an injunction requiring the Navy to establish policies and procedures protecting chaplains' free speech; and specific remedies to address damage to individual careers. Consol. Compl. at 115. It is not readily apparent, nor have Defendants provided any reasons, why the Court would find these remedies to be inadequate or unfeasible.
For the foregoing reasons, the Court finds that Plaintiffs have sufficiently alleged injury-in-fact and redressability to support standing.
D. Portions of Claims of Specific Plaintiffs Lastly, Defendants argue that the claims of specific Plaintiffs should be partially or entirely dismissed as timebarred or for failure to exhaust administrative remedies. Mot. at 51-21.
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1. Statute of Limitations a. Adair Plaintiff Rush
Adair Plaintiff Rush's claims are based on non-selections by selection boards convened in 1992 and 1993. Mot. at 53 (citing Mot. Ex. J, Declaration of David Lanham, Feb. 25, 2015 ("Lanham Deel.") ~ 18 [Dkt. No. 217-10]). Defendants argue that both of these non-selections fall outside of the Adair limitations-period cut-off of March 17, 1994. Plaintiffs counter that Rush "was discharged on the basis of his failure of selection within the [statute of limitations]." Opp'n at 60. Plaintiffs do not identify when precisely Rush was discharged, making it difficult to verify that his claim is within the statute of limitations. The Consolidated Complaint states that Rush was non-selected in 1994, but it does not say when in 1994. Due to the fact that Plaintiffs have not shown that Rush's claims are within the Adair statute of limitations period, Rush's non-selection for promotion to Lieutenant Commander claims are dismissed.
b. Gibson Plaintiffs Deroy, Garner, Johnson, Jones, Lancaster, Marsh, and Mitchell
Defendants argue that Plaintiffs' challenges to selection boards up to and including FY 2000 are time-barred because the boards' decisions were issued prior to the Gibson limitations cutoff of April 28, 2000. See Mot. at 55-59. The selection boards for FY 2000 met and issued their decisions in 1999. The earliest nontime-barred selection boards would therefore be for FY 2001.
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Plaintiffs did not respond to this argument and have therefore conceded it.
Plaintiff Demy was non-selected for promotion by the FY 2000 through 2009 Captain boards See Addendum A~ 6; Lanham Deel. ~ 5. His challenge to the FY 2000 selection board is dismissed. Plaintiff Garner was non-selected for promotion by the FY 2000 through 2003 Lieutenant Commander boards. See Addendum A ~ 16; Lanham Deel. ~ 7. His challenge to the FY 2000 selection board is dismissed. Plaintiff Johnson was non-selected for promotion by the FY 2000 through 2005 Captain boards. See Addendum A ~ 24; Lanham Deel. ~ 9. His challenge to the FY 2000 selection board is dismissed. Plaintiff Jones was non-selected for promotion by the FY 2000 through 2007 Commander boards. See Addendum A~ 26; Lanham Deel. ~ 10. His challenge to the FY 2000 selection board is dismissed. Plaintiff Lancaster was non-selected for promotion by the FY 1998 through 2002 Captain boards. See Addendum A ~ 32; Lanham Deel. ~ 11. His challenges to the FY 1998-2000 selection boards are dismissed. Plaintiff Marsh was non-selected for promotion by the FY 1996 through 2004 Commander boards. See Addendum A~ 37; Lanham Deel. ~ 13. His challenges to the FY 19962000 selection boards are dismissed. Plaintiff Mitchell was nonselected for promotion by the FY 2000 through 2002 Commander boards. See Addendum A~ 39; Lanham Deel. ~ 14. His challenges to the FY 1996-2000 selection boards are dismissed.
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2. Exhaustion of Administrative Remedies Defendants argue that the Court lacks jurisdiction over the non-selection for promotion claims of numerous Plaintiffs because Plaintiffs failed to exhaust their administrative remedies. As discussed in Section I. B. , chaplains must be selected for promotion in rank when the needs of the service require, and if they fail to select two or more times, they may be subject to selective early retirement. 10 U.S.C. §§ 611(a), 632. If a person is considered by a selection board but is not selected for promotion, he or she may challenge the decision of the selection board pursuant to an administrative review scheme. 10 U.S.C. § 628. The Secretary of the Navy is authorized under § 628 to convene a special selection board ("SSB") if the Secretary determines "that there was material unfairness with respect to that person." 10 U.S.C. § 628(b) (1). If the Secretary determines an SSB is warranted, the SSB then considers the record of the person "as that record, if corrected, would have appeared to the board that considered him." Id. § 628 (b) (2). On December 28, 2001, a revised version of § 628 became effective. As revised, a person must exhaust his or her remedies as set forth in § 628(g) and (h) before a court of the United States may consider a claim "based to any extent on the failure of a person to be selected for promotion by a promotion board." 10
u.s.c. § 628 (h).
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Defendants argue that § 628's exhaustion requirement is jurisdictional, and that any challenge to a decision by a promotion board made after December 28, 2001, must be dismissed for lack of subject matter jurisdiction because Plaintiffs did not exhaust their administrative remedies. Mot. at 52. Indeed, Judge Urbina has already ruled as much in this very case. See Memorandum Opinion on Motions to Alter or Amend and Motion for Partial Dismissal ("Partial Dismissal Mem. Op.") , [Dkt. No. 113] ("a court lacks jurisdiction to review decisions by the promotion boards and special selection boards if a plaintiff fails to exhaust his or her administrative remedies under [10 U.S.C.] § 1558 and § 628"). The Sixth Circuit reached the same conclusion in Harkness v. United States, where it found the exhaustion requirement to be jurisdictional. 727 F.3d 465, 469-72 (6th Cir. 2013).
Plaintiffs counter that Judge Urbina has twice previously rejected Defendants' arguments to dismiss their non-selection for promotion claims. Plaintiffs do not dispute that § 628(h) is jurisdictional, but rather argue that their claims continue to fall within the statutory exception, as previously determined in this case. Opp'n 58-60 (citing Memorandum Opinion Denying Preliminary Injunction ("Prelim. Injunction Mero. Op.") at 8 [Dkt. No. 108]). "[U]nder § 1558(g) and § 628(i), a court retains jurisdiction to review the actions by a selection or promotion board so long as the claim seeks judicial review of the 'validity
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of any law, regulation, or policy relating to selection boards.'"
Partial Dismissal Mem. Op. at 24 (quoting 10 u.s.c. §§ 1558 (g),
628(i)). In his first decision addressing this issue, Judge Urbina
held that Plaintiffs' challenges to "the policies used by the Navy to determine the composition and decision-making of the promotion boards" fell within the § 628 (i) exception, and therefore the Court had jurisdiction to review the claims. Prelim. Injunction Mem. Op. at 8. In the second decision on this issue, Judge Urbina found that Counts One, Two, and Three of the Gibson Amended Complaint [6-cv-2102, Dkt. No. 13] challenged the validity of "policies used by the Navy to determine the composition and guide the decisionmaking" of selection boards, and therefore the Court maintained its jurisdiction over the claims pursuant to the statutory exception. Partial Dismissal Mem. Op. at 25-26.
Since the time of Judge Urbina's decisions, the case has been reassigned to the undersigned Judge and Plaintiffs have filed their Consolidated Complaint, which is now the operative complaint for the three combined cases. While Judge Urbina's reasoning in the above decisions is still the law of the case, it is not readily apparent that the claims Defendants seek to have dismissed are the same as those claims the Court previously found to be within the statutory exception. Plaintiffs state that the promotion policies
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challenged previously are the same ones currently being challenged, see Opp'n at 59.
Defendants' Motion lays out the specific factual allegations of particular Plaintiffs in detail. Defendants then argue that resolution of each Plaintiff's claims does not require consideration of selection board policies and therefore the Court does not have jurisdiction over their claims. Mot. at 53-54. For example, Plaintiff Looby claims his non-selection was attributable to an unfounded rumor that he "had been injured on active duty, was ineligible for promotion and had performance problems," Addendum A ~35. Plaintiff Roman alleges that he was not selected for promotion because he had sued the Navy over religious discrimination. Id. ~ 4 7. He also alleges that his failure to select was due to "the animosity of the CHC leadership against his endorsing agency, CFGC, and the ability of one board member to ruin a chaplain's career with no accountability." Id.
While Defendants are correct that adjudication of Plaintiffs' non-selection claims on these facts alone would not require the Court to consider the validity of any selection board policies, these facts are not the only non-selection allegations Plaintiffs have made. Plaintiffs have also alleged that several selection board policies and systems are unconstitutional, and that these policies are common to all Plaintiffs. See e.g., Consol. Compl. Count 4 (size, staffing, and voting system of selection boards).
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The fact that individual Plaintiffs have alleged additional facts and theories for their non-selections does not negate their challenges to the policies.
Since Plaintiffs' non-selection for promotion claims challenge policies relating to selection boards and therefore fall within the exception to the exhaustion of administrative remedies requirement, see 10 U.S.C. § 628 (h), (i), Defendants' Motion to Dismiss Plaintiffs' non-selection for promotion claims for failure to exhaust and lack of jurisdiction shall be denied. IV. CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss shall be granted in part and denied in part. An Order shall accompany this Memorandum Opinion.
March 16, 2016
Copies to: attorneys on record via ECF
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 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 selection-

board 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

I.

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.

2

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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).
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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);
1 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.
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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.
A. 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
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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,
2 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).
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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). B. 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.
3 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.
C. 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
4 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
5 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
6 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.
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].
8 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].
9 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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D. 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

I.

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

10 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.
A. 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.
11 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
12 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.
13 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
B. 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
14 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).
15 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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C. 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.
1. 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
16 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
17 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
18 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
2. 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
19 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.
20 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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3. 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.
D. 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.
21 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
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.
A. 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
23 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.
24 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.
25 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-
26 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
27 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.
B. 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
43

Case 1:07-mc-00269-JDB Document 336 Filed 08/30/18 Page 44 of 45
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
44

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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.

Dated: August 30, 2018

/s/
JOHN D. BATES United States District Judge

45

 
 Case 2:19-cv-00095-HCM-DEM Document 26 Filed 09/13/19 Page 1 of 10 PageID# 597

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
ALLEN L.LANCASTER,et al.,

Plaintiffs,

V.
THE SECRETARY OF THE NAVY,et a!..

Case No.: 2:19-cv-95

Defendants.

OPINION & ORDER

This matter is before the Court on Defendants' motion to transfer venue. Doc. 9. The
Court held a hearing on June 13,2019,and ordered supplemental briefing,particularly on how the District for the District of Columbia("D.D.C.")recently disposed ofrelated litigation. In short. Defendants argue that Plaintiffs in this case are mis-joined, that the Plaintiffs violated an order from the D.D.C. severing claims of individualized discrimination, and that the Plaintiffs attempt to resurrect already-decided claims and issues. Plaintiffs argue that they have complied with the

D.D.C.'s order and that this Court is an appropriate venue to hear the all of the claims of individualized discrimination in a single action. For reasons stated herein, the Court GRANTS

the motion IN PART and DENIES the motion IN PART.

L BACKGROUND A. IN RE: NAVY CHAPLAINCY
This matter stems from nearly twenty (20) years of litigation in the D.D.C. In that litigation,three(3)cases were consolidated underthe caption In Re:Navv Chaplaincv. All parties before this Court were also parties to that litigation.

Case 2:19-cv-00095-HCM-DEM Document 26 Filed 09/13/19 Page 2 of 10 PageID# 598
The D.D.C.granted summaryjudgment to Defendants on Plaintiffs'"systemic claims"on August 30, 2018. In that order, the D.D.C. awarded judgment to Defendants on (1) Plaintiffs' claim that the Navy had a policy ofkeeping one Roman Catholic chaplain on all selection boards, Mem. 0pp., l:07-mc-269. Doc. 336 at 23; (2) Plaintiffs' challenges to the selection board procedures,id at 34;(3)Plaintiffs' constitutional challenge to the "discovery ban"of 10 U.S.C.§
613a,id at 37;and(4)denied Plaintiffs' requests for additional discovery,id at 38.' That order
-by its own terms-did not reach retaliation, constructive discharge,or interference with prayer claims. id Those three(3)claims were collectively referred to as the "ad hoc" claims, and
reserved for a future time. id
On November 2, 2018, all parties moved for the D.D.C. to sever the remaining "ad hoc" claims,arguing that those claims were improperlyjoined. Jt. Mot., l:07-mc-269. Doc.342(Nov. 2, 2018). The parties represented that the ad hoc claims involved different Plaintiffs, different events, occurred in different places, and would involve different witnesses. Id On November 8, 2018,the D.D.C.granted the motion to sever and ordered that every Plaintiffwho wished to pursue ad hoc claims do so "in any appropriate venue." Order, l:07-mc-269. Doc. 344.
B. THE INSTANT LANCASTER LITIGATION
Plaintiffs filed this case on March 1, 2019. Doc. 1. This is the first significant motion brought before the Court in this litigation.
Defendantfiled this motion to transfer the instantcase to the D.D.C.,alleging thatPlaintiffs are forum shopping,attempting to re-package decided claims as ad hoc claims,and filing this case
'The extent of discovery in the prior litigation was point of discussion at the hearing on the instant motion. The D.D.C.'ssummaryjudgment opinion discussed that matter in detail and concluded that sufficient discovery had taken place and "Plaintiffs March and September 2017 motions to lift the discovery stay will therefore be denied, and no further discovery will be permitted." 1:07-mc-269,Doc.336,at 43(D.D.C. Aug.30,2018).

Case 2:19-cv-00095-HCM-DEM Document 26 Filed 09/13/19 Page 3 of 10 PageID# 599
in this Court in violation of the D.D.C.'s severance order. Defendants argue that section 1404's convenience andjustice principles counsel in favor oftransferring this case back to the D.D.C.,so that court can determine the proper disposition ofthe instant claims.
IL DISCUSSION A. JOINDER
Whether the ad hoc claims are properly joined together in a single action was the subject ofa motion and order in Chanlaincv.the initial and supplemental briefs related to this motion,and the hearing on this motion to transfer. Thus, the Court will first address whether the claims are mis-joined.
Rule 21 provides: Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time,onjust terms,add or drop a party. The court may also sever any claim against a party. Fed. R. Civ. P. 21. Whether to drop a party is within the district court's discretion. Caperton v. Beatrice Pocahontas Coal Co..585 F.2d 683,692(4th Cir. 1978); Lamnliter Dinner Theater.Inc. V. Libertv Mut.Ins. Co..792 F.2d 1036, 1045-45(11th Cir. 1986). When deciding whether to sever under rule 21,courts apply thejoinder provisions ofrules 19 and 20. Rule 20 provides: Persons mayjoin in one action as plaintiffs if:
(A)they assert any right to reliefjointly,severally,or in the alternative with respect to or £irising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B)any question oflaw or fact common to all plaintiffs will arise in the action. Fed.R.Civ. P.20(a)(1). Rule 20 gives a court"wide discretion" concerning permissivejoinder. Aleman v. Chueach Support Services.Inc..485 F.3d 206,218 n.5(4th Cir.2007). The transaction or occurrence test is applied on a case by case basis, and absolute identity of the events is not

Case 2:19-cv-00095-HCM-DEM Document 26 Filed 09/13/19 Page 4 of 10 PageID# 600
necessary. Saval v.BL Ltd..710 F.2d 1027,1031(4th Cir. 1983). The rule should be read in light ofthe its purpose-to promote trial convenience and expedite the final determination ofdisputes. Id. Although rule 20 contemplates broadjoinder principles,"merely committing the same type of violation in the same way" generally does not supportjoinder under the transaction or occurrence test. See Cell Film Holdings. LLC v. Does.2016 WL 7494319,at * 3(E.D. Va. Dec. 30,2016). If permitting joinder would result in prejudice, expense, or delay, the district court may deny joinder. Aleman.485 F.3d at 218 n.5. Where a district court finds,exercising its discretion,that the requirements ofthe rule and its purposes are not met,it may sever parties. Saval.710 F.2d at
1031.
Defendants argue that both parties represented to the D.D.C. that the ad hoc claims retaliation, constructive discharge, and interference with prayer - were separate claims that "do not satisfy either prong of rule 20(a)." Doc. 22-1. Plaintiffs and Defendants represented to the D.D.C. Judge that:
the ad hoc claims concern varying discrete instances of conduct that involve different plaintiffs, different witnesses,different events,in different locations,and at differenttimes .... Moreover, given that these claims necessarily would involve substantially different evidence and would likely involve different defenses, there is no reason to believe that consolidating them would promote trial convenience or expedite their resolution. Similarly, shorn of the systemic claims[, on which the D.C. court granted summary judgment to Defendants], Plaintiffs' remaining ad hoc claims do not share any common factual or legal nucleus. Id. at 3-4. With that understanding,the D.D.C. Judge granted the requested reliefand severed the
ad hoc claims. See Doc. 22-2.
A judicial admission is a representation to a court that is "conclusive in the case," unless the court permits it to be withdrawn. Mever v.Berkshire Life Ins. Co..372 F.3d 261,264-65(4th Cir. 2004); VIA Design Architects v. U.S. Dev. Co.. LLC. 2014 WL 5685550, at *8 (E.D. Va.

Case 2:19-cv-00095-HCM-DEM Document 26 Filed 09/13/19 Page 5 of 10 PageID# 601
Nov. 4, 2014) (granting summaryjudgment given ajudicial admission, even though the admission came in a brief, not a pleading). Ajudicial admission is not evidence; rather, it is a formal, binding concession that removes a fact from contention. Keller v. United States, 58 F.3d 1194, 1199 n.8 (7th Cir. 1995), see also Meyer, 372 F.3d at 264 (4th Cir. 2004). They include "intentional and unambiguous waivers" as to factual matters that "release the opposing party from its burden to prove the facts necessary to established the waived conclusion of law." Everett v. Pitt Cty. Bd. Of Educ., 788 F.3d 132, 141 (4th Cir. 2015). Whether a statement constitutes ajudicial admission is within the district court's discretion. Meyer, 372 F.3d at 264.
Plaintiffs and Defendants made several "fact representations" to the D.D.C. Judge in requesting severance, specifically that the ad hoc claims concerned "varying discrete instances of conduct that involve different plaintiffs, different witnesses, difference events, in different locations, and at different times" and that because the ad hoc claims will "involve[] substantially different evidence and would likely involve different defenses, there is no reason to believe that consolidating them would promote trial convenience or expedite their resolution." Doc. 22-1 at 34. Based on these fact representations, the D.D.C. severed those claims. Therefore, the Court FINDS that the Plaintiffs made judicial admissions as to the substance of their claims, and that Plaintiffs are bound by those admissions.
Even if the Court did not hold the Plaintiffs to their admissions, joinder is not appropriate here. Plaintiffs argue that joinder is appropriate because of "common themes," i.e., that some Plaintiffs suffered different instances of discrimination in the same place, or at the hands of the
same individual. See Compl. Irlr 6-9, Compl. Ex. A. That does notjustifyjoining all Plaintiffs into
a single action, because their claims do not arise out of the same transaction or occurrence. Although each claim asserts some breed or instance of discrimination, each Plaintiff allegedly
5

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suffered a different case of discrimination. Accord, e.g.. Gregory v. FedEx Ground Package
Systems.2012 WL 2396873,at *11 (E.D. Va. May 9,2012),report and recommendation adopted ^2012 WL 2396861 (E.D. Va. June 25, 2012); Bailey y. Northern Trust Co.. 196 F.R.D. 513 (N.D. 111. 2000)(finding no joinder where fiye plaintiffs alleged discrimination in the same department but at the hands ofdifferent supervisors); Maclin y. Northern Telecom.Inc.. 1996 WL 495558,at*(N.D.111. Aug.28,1996)(seyering claims becausethe alleged discrimination occurred during different periods oftime); Smith y. N. Am.Rockwell Corp..50 F.R.D. 515,521-24(N.D. Okla. 1970) (denying joinder where plaintiffs alleged discriminatory policy because discrimination occurred at different times and was allegedly committed by different actors). Thus, joining all twenty-seyen(27)Plaintiffs together in one action is inappropriate.
Furthermore, trying all of Plaintiffs' claims together will not further the purposes of rule 20. As the Joint Motion conceded, "giyen that these claims necessarily would inyoWe substantially different eyidence and would likely inyolye different defenses,there is no reason to belieye that consolidating them would promote trial conyenience or expedite their resolution." Doc.22-1 at4. In Saval,the Fourth Circuit affirmed the district court's decision to seyer plaintiffs, where each plaintiff alleged a similar breach of warranty pertaining to each of their own similar cars. The Sayal court recognized:
The district court did not err in determining that the allegedly similar problems did not satisfy the transaction or occurrence test. The cars were purchased at different times, were driyen differently, and had different seryice histories. Quite probably, seyerance would haye been required in order to keep straight the facts pertaining to the separate automobiles. At least as to the warreinty claims,the similarity ofdefects is irreleyant; each complainant need only demonstrate what warranties were made, and the extent to which the products
differed therefrom.
Sayal. 710 F.3d at 1031. Here, Plaintiffs allege many different, indiyidualized instances of discrimination that allegedly took place from California to Italy. E.g..Doc. 1 |f 7.Eyen ifall some

Case 2:19-cv-00095-HCM-DEM Document 26 Filed 09/13/19 Page 7 of 10 PageID# 603
claims were at the hands of the same Defendant, that does not mean that the instances of discrimination werethe same occurrence. Keeping all ofthose allegations and occurrences straight would call for severance as well, or perhaps separate trials.
Although Defendants have not specifically moved for severance, they have put the issue before the Court, and, in any event. Rule 21 allows the Court to "drop any party" on its own on just terms. The Court FINDS just terms to do so, for reasons discussed supra at 3-7. PlaintiffLancaster lives in Suffolk and Plaintiff-Wilson lives in Virginia Beach.Compl.at 1. Accordingly,
the Court SEVERS these Plaintiffs. B. TRANSFER
Defendants here ask this Court to transfer all Plaintiffs to the D.D.C. Defendants argue that because the ad hoc claims were severed, each Plaintiff should have filed their claims in Districts with appropriate venue. Asdescribed herein,the CourtGRANTSthatrequestIN PART.
Generally, when proper venue is lacking, the court may transfer the case to another court iftransfer is in the interest ofjustice. 28 U.S.C. § 1406. "Interests ofjustice" in the context of section 1406 calls for "removing whatever obstacles may impede an expeditious and orderly adjudication ofcases and controversies on their merits."The Hipaee Co..Inc. v. Access2Go.Inc.. 589 F. Supp. 2d 602,613-14(E.D. Va. 2008)(quoting Goldwar. Inc. v. Heiman. 369 U.S. 463, 466-67(1962)).
A court may also transfer a case when itfinds,in its discretion,thatconvenience andjustice principles call for a transfer, even if venue is appropriate in the transferor court. 28 U.S.C. § 1404(a). This requires a two-step inquiry:(1)the court must determine whether the action"might have been brought" in the proposed transferee forum, and (2) the court should weigh several factors,including the plaintiffs chosen forum,the convenience ofthe witnesses,the convenience

Case 2:19-cv-00095-HCM-DEM Document 26 Filed 09/13/19 Page 8 of 10 PageID# 604
ofthe parties, and the interests ofjustice. Trustees ofthe Plumbers and Pipefitters Nat. Pension Fund V.Plumbing Services. Inc.. 791 F.3d 436,444(4th Cir. 2015). Courts consider a variety of factors in assessing the "interests ofjustice," including the court's familiarity with the applicable law, docket conditions, the possibility of unfair trial, the ability to join other parties, and the possibility ofharassment. Agilent Tech..Inc. v. Micromuse.Inc..316 F.Supp.2d 322,329(E.D. Va. 2004). The movant bears the burden of proving that transfer is proper. E.g.. Svmbologv Innovations.LLC v. Lego Svstems.Inc..282 F. Supp.3d 916,925(E.D. Va.2017).
Plaintiffs attempt to justify venue in this Court, because "defendants are a federal agency and its officials and[sic]are located in this District's territory along with some plaintiffs." Compl. If 3. However,just because the Navy has facilities and officials in this District does not confer venue under section 1391(e). A federal agency sued in its own name "resides" in the District of Columbia and a federal official"resides" where he orshe performs his or her official duties. South Carolina Coastal Conservation League v. Pruitt.2018 WL 2184395,at *4(D.S.C. May 11,2018) (citing Reuben H. Donnellev Corp. v. F.T.C..580 F.2d 264,267(7th Cir. 1978)and Archuleta v. Sullivan.725 F. Supp.602,605(D.D.C. 1989)). Thus,the D.D.C.would be an appropriate venue,
because that is where the Defendants "reside." Defendants even concede that the D.D.C. would
be an appropriate venue for this litigation. Doc. 10 at 8("There is no doubt that Plaintiffs could have originally brought this action in the [D.D.C.].").^
No actions or omissions are alleged to take place in this District and only PlaintiffLancaster and Plaintiff-Wilson reside in this District. Even taking Defendants' arguments as completely correct, Plaintiff-Lancaster and Plaintiff-Wilson complied with the D.D.C.'s order.
^ Plaintiffs dispute this conclusion,citing the Rules ofProfessional Conductfor the proposition that the probability of
a lack ofsuccess would preclude counsel from bringing the action in the D.D.C. Doc. 18 at 16-17,22. However,the "could have been brought" language of section 1406(a) only requires personal jurisdiction over the defendant and proper venue. See 17 MooRE's FederalPractice-Civil § 111.12[1.b.].
8

Case 2:19-cv-00095-HCM-DEM Document 26 Filed 09/13/19 Page 9 of 10 PageID# 605
Accordingly, venue as to those two(2) Plaintiffs is appropriate in this Court. Defendants have not given a persuasive reason as to why those two(2)Plaintiffs should be transferred to D.D.C. Indeed, under Defendants' own argument, those two (2) Plaintiffs re-filed their claims in "an appropriate venue," consistent with the D.D.C.'s order. Thus, the Court FINDS that Plaintiffs Lancaster and Wilson are appropriately before this Court and DENIES the motion with respect to them. However, the remaining Plaintiffs cannot establish proper venue; accordingly, the Court GRANTS the motion with respect to the remaining Plaintiffs, under section 1406.
The Court would also make the same finding under section 1404. As described herein,the D.D.C. is a district in which the case might have been brought, because it would have personal jurisdiction and proper venue over the allegations. Here,only two(2)Plaintiffs have contact with this District,and Plaintiffs have suggested that one oftheir motivations to file in this District was to avoid further adjudication in the D.D.C. Doc. 18 at 3,16,see also Order,Gibson v.The United States Navv.3:06-cv-187,doc.33,2006 U.S. Dist. LEXIS 103033,at **9-11 (N.D.Fla. Aug. 17, 2006). Thus,exceptfor Plaintiffs Lancaster and Wilson,Plaintiffs' decision to file in this District should be accorded little weight. The D.D.C. has a deep familiarity with the facts of this case, having supervised the Navv Chaplaincv litigation for nearly twenty years. Furthermore, the Plaintiffs appear to have filed this case in this District in a manner inconsistent with their agreed, joint motion and the D.D.C.'s severance order. Therefore, principles ofjustice counsel in favor of transferring the case to the D.D.C. There is no indication that this District is any more or less convenient for the parties or witnesses; therefore, convenience considerations are neutral with respect to transfer.

Case 2:19-cv-00095-HCM-DEM Document 26 Filed 09/13/19 Page 10 of 10 PageID# 606

Accordingly,venue is not proper with respect to the other twenty-five(25)Plaintiffs. The

Court therefore GRANTS the motion insofar as it seeks to transfer those twenty-five (25)

Plaintiffs.
For the foregoing reasons, the Court GRANTS Defendants' motion to transfer IN PART

and DENIES it IN PART.

The Clerk is REQUESTED to distribute a copy of this Opinion and Order to counsel of
record.

It is SO ORDERED.
Norjblk^Yirginia /:^ ,2019

/s/
Henry Coke Morgan,Jr. Senior United Slates District Jud
Henry Coke Morgan,Jr. j~J ^
Senior United States District Judge

10

 
 Case 1:19-cv-02755-JDB Document 33 Filed 04/21/20 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RICHARD ARNOLD, et al., Plaintiffs, v.
SECRETARY OF THE NAVY, et al.,
Defendants.

Civil No. 19-2755 (JDB)

MEMORANDUM OPINION This action is the latest in a long-running series of cases filed in this Court and elsewhere around the country by a group of Protestant U.S. Navy chaplains against the Navy, alleging that the Navy discriminated against them on the basis of their faith. Previously, as relevant here, three such cases were consolidated before this Court. In 2018 (after more than a decade of litigation), the Court granted summary judgment to the Navy on the bulk of the chaplains’ claims.1 See In re Navy Chaplaincy, 323 F. Supp. 3d 25, 29 (D.D.C. 2018). The chaplains’ claims had consisted of both “systemic” claims—broad challenges to various Navy selection board policies and procedures—and “ad hoc” claims—discrete instances of discrimination against individual plaintiffs. The Court’s 2018 opinion and accompanying order rejected all the chaplains’ systemic claims but left three ad hoc claims standing for future resolution: constructive discharge, retaliation, and interference with the form of prayer. See Nov. 8, 2018 Order (“Severance Order”) at 1, In re Navy Chaplaincy, No. 07-mc-269 (D.D.C. 2018), ECF No. 344. That 2018 opinion is currently before the D.C. Circuit on appeal. See In re Navy Chaplaincy, appeal docketed, No. 195206 (D.C. Cir. 2019).

1 That case was transferred to the undersigned judge in 2017 after a decade of litigation before two other district judges, interspersed with several trips to the D.C. Circuit.
1

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Following the Court’s summary judgment opinion, the chaplains and the Navy filed a joint motion to sever the remaining ad hoc claims. Joint Mot. for Severance of Claims (“Joint Severance Mot.”), In re Navy Chaplaincy, No. 07-mc-269 (D.D.C. 2018), ECF No. 342. Under Federal Rule of Civil Procedure 20(a), plaintiffs may join in a single action if they both (1) assert claims “arising out of the same transaction, occurrence, or series of transactions or occurrences,” and (2) those claims involve “any question of law or fact common to all plaintiffs.” Fed. R. Civ. P. 20(a). The parties jointly represented to the Court that they did not believe that, “shorn of the systemic claims,” the remaining ad hoc claims satisfied either of Rule 20(a)’s prongs. Joint Severance Mot. at 4. The claims did not satisfy the first prong, the parties stated, because they “concern[ed] varying discrete instances of conduct that involve different plaintiffs, different witnesses, different events, in different locations, and at different times,” and moreover they would “involve substantially different evidence and would likely involve different defenses,” such that “there [was] no reason to believe that consolidating them would promote trial convenience or expedite their resolution.” Id. at 3–4. Nor, according to the parties, did the claims satisfy the second Rule 20(a) prong, because they did “not share any common factual or legal nucleus.” Id. at 4. Therefore, the parties requested that the Court sever the claims and allow “any Plaintiff who wishes to refile” to do so within a prescribed period; any claims that were not “refiled as separate actions” by the end of that period were to be dismissed with prejudice. Id. at 4–5.
The Court accepted the parties’ representations, agreed with their well-reasoned arguments that the ad hoc claims did not satisfy either of the Rule 20(a) prongs, and granted the motion. See Severance Order at 1–2. Accordingly, the Court severed the individual claims and ordered that “any plaintiff . . . who wishes to refile his or her claims for constructive discharge (Count 11), retaliation (Count 12), and/or interference with the form of prayer (Count 9) shall do so, in any
2

Case 1:19-cv-02755-JDB Document 33 Filed 04/21/20 Page 3 of 21
appropriate venue, within ninety (90) days of the issuance of this order, or else his or her claims will be dismissed with prejudice.” Id. at 2. The chaplains later moved for an extension of time to refile their severed claims to March 1, 2019, and the Court granted that motion as well. See Jan. 24, 2019 Minute Order, In re Navy Chaplaincy, No. 07-mc-269 (D.D.C. 2019).
On the last day of that filing period, the instant action was filed in the U.S. District Court for the Eastern District of Virginia. The complaint, which once again joins together twenty-seven of the plaintiffs from Navy Chaplaincy, asserts five counts against the Navy: (1) what it calls an “illegal retaliation” claim; (2) a challenge to the constitutionality of 10 U.S.C. § 613a; (3) what it calls a “constructive discharge” claim; (4) a claim that “the Navy has discriminated against nonliturgical chaplains’ religious free speech”; and (5) violations of the Religious Freedom Restoration Act (“RFRA”). See Compl. ¶¶ 18–33. Moreover, the complaint states that joinder is now appropriate because “[c]areful analysis of plaintiffs’ underlying claims show common themes of retaliation occurring at specific locations, arising from the same or similar sources and common expressions of retaliation and religious hostility.” Compl. ¶ 5.
The Navy took issue with the complaint and promptly filed a motion to transfer the case from the Eastern District of Virginia back to this Court. See Defs.’ Mot. to Transfer Venue [ECF No. 9] at 1. In the Navy’s view, despite dressing them up as “retaliation” and “constructive discharge” claims, the new complaint for the most part actually reasserted the very same systemic claims that this Court had already resolved in its summary judgment opinion; moreover, the Navy argued, the ad hoc claims were improperly joined, contradicting plaintiffs’ representations in the joint motion for severance that joinder was inappropriate. See Defs.’ Mem. in Supp. of Mot. to Transfer Venue [ECF No. 10] at 1–2. Given the “blatant disregard” for this Court’s Severance Order that plaintiffs had shown, the Navy contended that justice would be best served by
3

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transferring plaintiffs’ “recycled claims” back to this Court, which is “fully versed in the twistsand-turns” of the case, for resolution. Id. at 2. Judge Morgan agreed, granting the Navy’s motion as to twenty-five of the plaintiffs.2 See Opinion & Order [ECF No. 26] at 10.
With the case having now been transferred to this Court, the Navy has filed a motion to dismiss, arguing that (1) four of the five counts asserted in the complaint should be dismissed as barred by “res judicata principles,” and (2) the Court should sever the claims of the five plaintiffs who improperly joined their otherwise proper ad hoc claims in Count Four and permit refiling of those claims only upon leave of this Court. See Defs.’ Mot. to Dismiss Compl. (“MTD”) [ECF No. 29] at 1–2. The matter is now fully briefed, and the motion is ripe for decision.
Legal Standard A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To withstand a motion to dismiss, the complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citations omitted). In evaluating the sufficiency of a complaint, the Court considers “the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Dismissal is appropriate if the plaintiff’s claims are defeated by a defense that appears on the face of the complaint. See Smith-Haynie v. District of
2 Judge Morgan denied the motion as to the last two plaintiffs, concluding that because they resided in the Eastern District of Virginia, they were on stronger footing to file in that district than were the rest of the plaintiffs, who did not reside there and whose “decision to file in [the Eastern District of Virginia] should be accorded little weight” in the venue-transfer analysis. Opinion & Order at 9.
4

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Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998) (“[A]n affirmative defense may be raised by preanswer motion under Rule 12(b) when the facts that give rise to the defense are clear from the face of the complaint.”); Nader v. Democratic Nat’l Comm., 590 F. Supp. 2d 164, 169 (D.D.C. 2008) (courts “allow[] parties to assert [res judicata] in a motion to dismiss when ‘all relevant facts are shown by the court’s own records, of which the court takes notice.’” (quoting Hemphill v. Kimberly-Clark Corp., 530 F. Supp. 2d 108, 111 (D.D.C. 2008))).
Analysis I. The Retaliation, 10 U.S.C. § 613a, Constructive Discharge, and RFRA Claims
The Court first addresses the Navy’s various related arguments that four of the five counts asserted in the chaplains’ complaint are merely impermissible repackagings of claims that this Court already resolved in its 2018 opinion in the Navy Chaplaincy case.
A. Res Judicata Principles In general, res judicata “bars relitigation of claims and issues that were or could have been litigated in a prior action.” Alaska Forest Ass’n v. Vilsack, 883 F. Supp. 2d 136, 141 (D.D.C. 2012). “Under well-settled federal law, the pendency of an appeal does not diminish the res judicata effect of a judgment rendered by a federal court.” Hunt v. Liberty Lobby, Inc., 707 F.2d 1493, 1497 (D.C. Cir. 1983). Res judicata encompasses two interrelated doctrines: claim preclusion and issue preclusion. See Taylor v. Sturgell, 553 U.S. 880, 892 (2008). Claim preclusion applies to foreclose “successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.” New Hampshire v. Maine, 532 U.S. 742, 748 (2001). The doctrine therefore “focuses on whether the same cause of action is implicated in both the initial and subsequent lawsuits, meaning the two lawsuits share the same nucleus of facts.” Theodore v. District of Columbia, 772 F. Supp. 2d 287, 293 (D.D.C. 2011)
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(internal quotation marks omitted); id. at 293 (noting that under claim preclusion, parties cannot “mask [their] argument under a new legal theory” where the claims “ultimately rely on the same factual nucleus” (internal quotation marks omitted)). A subsequent claim is barred by claim preclusion “if there has been prior litigation (1) involving the same claims or cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.” Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006).
Issue preclusion applies to bar “successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim.” Sturgell, 553 U.S. at 892 (internal quotation marks omitted). For a prior holding to preclude an issue, three requirements apply: “First, the same issue now being raised must have been contested by the parties and submitted for judicial determination in the prior case. Second, the issue must have been actually and necessarily determined by a court of competent jurisdiction in that prior case. Third, preclusion in the second case must not work a basic unfairness to the party bound by the first determination.” Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (citations omitted).
With some limited exceptions, see Sturgell, 553 U.S. at 893–95, both doctrines apply to preclude subsequent litigation of claims and issues only for persons who were parties to the earlier suit, in order to uphold the “deep-rooted historic tradition that everyone should have his own day in court,” Richards v. Jefferson County, 517 U.S. 793, 798 (1996) (internal quotation marks omitted). At bottom, by “preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate,” the two doctrines “protect against the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action
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by minimizing the possibility of inconsistent decisions.” Sturgell, 553 U.S. at 892 (quoting Montana v. United States, 440 U.S. 147, 153–154 (1979)).
B. The Retaliation and Constructive Discharge Claims Count 1 of the complaint asserts a claim for illegal retaliation, alleging that the Navy retaliated against plaintiffs by employing “practices” and “procedures” on selection boards that discriminated against non-liturgical chaplains, ultimately resulting in plaintiffs’ being passed over for promotion or forced into early retirement. See Compl. ¶¶ 21–25. Count 3 of the complaint asserts a claim for constructive discharge, alleging that the Navy “through its challenged procedures . . . created a hostile environment, and used the realities of the ‘up or out’ Navy promotion system and separation process to make working conditions intolerable for certain of these plaintiffs.” Id. ¶¶ 28–29. The Navy argues that the allegations in these two new claims bear almost no resemblance to the allegations in the severed ad hoc claims, and that rather than refiling the individual severed claims, the chaplains instead now seek to relitigate the systemic claims that this Court already resolved in its 2018 opinion. See MTD at 9–10. Therefore, the Navy contends, the claims are barred by the doctrine of claim preclusion. Id. The Court agrees. To establish that the complaint’s claims of retaliation and constructive discharge are claimprecluded, the Navy must show that there has been prior litigation (1) involving the same claims, (2) between the same parties, (3) with a final, valid judgment on the merits (4) issued by a court of competent jurisdiction. See Smalls, 471 F.3d at 192. As a threshold matter, there has been prior litigation: as relevant here, the Navy Chaplaincy litigation.3 As for the four requirements, three of them are obviously met and uncontested by the chaplains. First, all of the parties to this action were also parties to the Navy Chaplaincy litigation. Second, that litigation ended with a final,
3 The Court notes that it is of no consequence, for res judicata purposes, that the 2018 opinion is currently on appeal to the D.C. Circuit. See Hunt, 707 F.2d at 1497.
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valid judgment on the merits (this Court’s 2018 opinion and accompanying order). And third, this Court was a court of competent jurisdiction. See Navy Chaplaincy, 323 F. Supp. 3d at 40–41.
The only requirement as to which there is any dispute is whether the claims here are the “same” as the claims in Navy Chaplaincy. It is well-settled that when comparing two claims for purposes of claim preclusion, “it is the factual nucleus that gives rise to a plaintiff’s claims, not a legal theory on which the claim rests that determines whether the claim may proceed.” Lindsey v. District of Columbia, 609 F. Supp. 2d 71, 77 (D.D.C. 2009). In other words, a party cannot simply dress up a claim involving the same facts in new legal garb and relitigate it. The Court is persuaded that, here, that is precisely what the chaplains have attempted to do. The retaliation count of the complaint, far from having as its “factual nucleus” the particular claims of any individual plaintiff, actually has precisely the same “factual nucleus” as the systemic challenges from Navy Chaplaincy—the Navy’s policies and procedures for its selection boards.
The paragraphs in the complaint containing the retaliation claims, for instance, do not focus on any plaintiff’s individual factual allegations. Instead, those paragraphs allege that the Navy’s selection board procedures (1) broadly discriminated against non-liturgical chaplains in promotion and retirement decisions, Compl. ¶¶ 15, 21(c); (2) “delegated unbridled power” to chaplains with denominational preferences, id. ¶ 21(d); and (3) “lack[ed] effective guarantees” that denominational preferences “would not influence selection board decisions or violate religious neutrality,” id. ¶¶ 22–23. The chaplains argued these very same theories, on the very same facts, in Navy Chaplaincy, and this Court rejected each of them there. See Navy Chaplaincy, 323 F. Supp. 3d at 43–49 (rejecting plaintiffs’ “denominational preference” argument); id. at 49–50 (rejecting plaintiffs’ argument that “challenged procedures impermissibly vest[] . . . unbridled
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discretion in a government official”); id. at 49 (rejecting plaintiffs’ argument that challenged procedures improperly delegate authority to denominational representatives).
Likewise, the specific procedures that the chaplains allege existed and that they now attempt to challenge are precisely the same ones that this Court has already discussed. For example, the chaplains challenge the Navy’s alleged policy of having the Chief of Chaplains serve as selection board president; the “small number of [selection] board members”; the “anonymity of board member votes”; the requirement that one chaplain review and present a candidate’s record to other board members prior to voting; and the ability of the selection board to discuss a candidate’s record. Compl. ¶ 15(a), (d). The Court’s 2018 opinion addressed and rejected the chaplains’ challenge to each of these procedures. See Navy Chaplaincy, 323 F. Supp. 3d at 47 (discussing plaintiffs’ challenges to “(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”). The chaplains make no attempt to tie any of these challenged procedures to any of the individual plaintiffs’ factual allegations, instead relying on the mere fact of the alleged existence of the procedures to support their “individual” retaliation claims.
Plaintiffs argue that claim preclusion should not apply here because the Court’s 2018 opinion did not specifically address the legal theory of retaliation, and thus they cannot be barred from bringing such claims now. See Pls.’ Opp’n & Resp. to Defs.’ Mot. to Dismiss (“Pls.’ Opp’n”) [ECF No. 31] at 13 (“The Navy has not shown where Chaplaincy addressed any element of a Retaliation cause of action, either systemic or individual.”). But in focusing on the new legal
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theory undergirding their claim, rather than the facts on which that legal theory is based, plaintiffs fundamentally misunderstand how claim preclusion works. “For purposes of claim preclusion, it is the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory upon which a litigant relies.” Sorenson Commc’ns, LLC v. FCC, 897 F.3d 214, 226 (D.C. Cir. 2018) (internal quotation marks omitted). The fact that plaintiffs have found a new legal theory does not change the reality that their claims, in the end, “ultimate[ly] rely on the same factual nucleus,” Theodore, 772 F. Supp. 2d at 294, as plaintiffs’ previous systemic claims. After all, “claim preclusion precludes the litigations of claims, not just arguments.” NRDC v. EPA, 513 F.3d 257, 261 (D.C. Cir. 2008). This principle makes good sense: res judicata would not do much to promote judicial efficiency if plaintiffs could simply relitigate the same old facts every time they think up a new legal argument. Cf. id. (“[C]laim preclusion is also intended to prevent litigation of matters that should have been raised in an earlier suit.” (internal quotation marks omitted)). Accordingly, the chaplains’ “retaliation” claims, as alleged, are barred by claim preclusion.
For the same reasons, the Court concludes that claim preclusion also bars the complaint’s “constructive discharge” claims in Count 3, which allege that the Navy, “through its challenged procedures enabling retaliation[,] created a hostile environment.” Compl. ¶ 28. These claims are starkly different from the constructive discharge claims that the Court severed, which contained individualized allegations of specific hostile work environments at discrete Navy work locations around the world. See Consolidated Compl. ¶¶ 179–80, In re Navy Chaplaincy, No. 07-mc-269 (D.D.C. 2012), ECF No. 134. Instead of focusing on such individualized allegations here, the chaplains chose to revive the same systemic challenges to the Navy’s alleged procedures that the Court has already resolved. The challenges to the Navy’s selection board policies and procedures
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found in the chaplains’ constructive discharge claims are the same as those in their retaliation claims, and again mimic (and revolve around the same factual nucleus as) the claims that the Court’s 2018 opinion rejected. See Navy Chaplaincy, 323 F. Supp. 3d at 47. As such, the chaplains’ attempt “to mask [their] arguments under a new legal theory,” Theodore, 772 F. Supp. 2d at 294, fails, and the “constructive discharge” claims, as alleged, are also barred by claim preclusion.4
It is true, however, that the complaint does contain a lengthy factual background for each of the twenty-five plaintiffs that even the Navy concedes could in theory support individual claims. See MTD at 12 (“To be sure, the Complaint does contain some factual allegations . . . [upon which] Plaintiffs could have asserted actual retaliation claims.”); Reply in Supp. of Defs.’ MTD (“Reply”) [ECF No. 32] at 7 (noting that the complaint contains “a few factual allegations appropriate for a retaliation or constructive discharge claim”). Indeed, focusing on those individual facts in individual actions was what the Court hoped and expected the chaplains would do upon issuance of the Severance Order, given their representation in the joint severance motion that any remaining claims would be “refiled as separate actions.” Joint Severance Mot. at 4–5. Because the complaint contains these allegations (albeit interspersed with impermissible systemic challenges), the Court is hesitant to dismiss the chaplains’ individual claims outright. With some trepidation, therefore, the Court will afford the chaplains one final opportunity to refile their individual retaliation and constructive discharge claims, subject to the dictates of the pre-filing injunction that the Court will discuss in Part II of this opinion.
4 Additionally, as the Navy points out, see MTD at 10, the chaplains would in any event be barred by issue preclusion from litigating whether they can assert claims that the challenged procedures created a hostile work environment, as that issue was actually litigated and resolved in a prior opinion in the Navy Chaplaincy litigation. See In re Navy Chaplaincy, 170 F. Supp. 3d 21, 39–40 (D.D.C. 2016) (after full briefing, dismissing claims that the Navy has a “culture of bias and hostility toward Non-liturgical chaplains”).
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C. The § 613a and RFRA Claims Count 2 of the complaint asserts that “10 U.S.C. § 613a’s ban on discovery is unconstitutional under the First and Fifth [A]mendments as applied to claims of unconstitutional retaliation and denominational preferences.” Compl. ¶ 26. Count 5 of the complaint asserts that the various Navy “actions and procedures” challenged in the suit, which allegedly “result in unconstitutional retaliation and denominational preferences,” violate RFRA. Compl. ¶ 33. The Navy argues for dismissal of the claims asserted in these counts, primarily because the claims are duplicative of the § 613a and RFRA claims already decided in the Court’s 2018 opinion and are thus barred by res judicata. Again, the Court agrees. With respect to the RFRA claims, as with the retaliation and constructive discharge claims, the only question for purposes of claim preclusion is whether the claims are the “same” as claims resolved in the Navy Chaplaincy litigation. And for identical reasons, the Court concludes that they are. The RFRA claims are derivative of the retaliation and constructive discharge claims; the paragraphs of the complaint containing the RFRA claims point to the allegations in the retaliation and constructive discharge claims as the conduct supporting the chaplains’ allegations that the Navy violated RFRA. See Compl. ¶¶ 32–33 (“Plaintiffs claim the challenged actions and procedures result in unconstitutional retaliation and denominational preferences and therefore violate the Constitution, [and] statutes[, including RFRA].”). Because the Court already determined that those claims are merely a rehashing of the chaplains’ prior systemic claims, so too are the RFRA claims, which once again depend on the same factual nexus of the Navy’s selection board policies and procedures. The Court’s 2018 opinion granted summary judgment to the Navy on the chaplains’ claims that the Navy’s chaplain promotion and selection board system violated RFRA. See Navy Chaplaincy, 323 F. Supp. 3d at 38–51. Because those are the same claims that
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the chaplains attempt to bring here, the Court determines that they are barred by claim preclusion and will dismiss them with prejudice.
As for the challenge to § 613a, which bans the disclosure of selection board proceedings in litigation, the Court notes that this is now the fourth time plaintiffs have attempted to challenge the constitutionality of the provision or its predecessor provision, despite repeated and explicit judicial warnings not to press the issue further after their first three attempts were unsuccessful. See In re Navy Chaplaincy, 512 F. Supp. 2d 58, 62 (D.D.C. 2007) (“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.”); Navy Chaplaincy, 323 F. Supp. 3d at 51 (noting that plaintiffs had failed to “heed[] that admonition” and that the “reasoning of those prior decisions [upholding the provision] remain[ed] valid”). The Court’s 2018 opinion conclusively resolved the question, noting that plaintiffs had not advanced a “coherent theory supporting an unqualified right of access to information” from selection board proceedings to prove their constitutional claims. Navy Chaplaincy, 323 F. Supp. 3d at 51 (internal quotation marks omitted).
Plaintiffs’ only argument differentiating the present challenge from the prior challenges is that discovery is now needed to support their new ad hoc retaliation claims, and so the analysis of § 613a should somehow be different (though plaintiffs do not explain how). See Opp’n at 22–23. The Court agrees with the Navy, see Reply at 4–5, that the Court’s prior conclusion that § 613a is constitutional applies with equal force whether plaintiffs challenge the provision in litigation involving systemic claims or ad hoc claims. As the Court stated, there is no “constitutional right to evidence in support of . . . constitutional claims.” Navy Chaplaincy, 323 F. Supp. 3d at 51. The chaplains have now appealed that decision to the D.C. Circuit, arguing vigorously that this Court
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erred in rejecting their challenge to § 613a. See Appellants’ Opening Br. at 44–53, In re Navy Chaplaincy, No. 19-5206 (D.C. Cir. 2020). This Court declines to reconsider an issue presently pending before the D.C. Circuit. The Court therefore concludes (1) that this claim is the “same” as a claim already resolved in the 2018 opinion, and thus plaintiffs are claim precluded from bringing it now, and (2) that this issue was already fully litigated and necessary to the Court’s earlier decision, and thus plaintiffs are issue precluded from raising the issue again. The Court will dismiss the § 613a claim with prejudice.
II. The Surviving Claims As noted, the Court will provide the chaplains with one final opportunity to refile, in
individual actions, their individual retaliation and constructive discharge claims. One count of the complaint remains to be addressed: Count 4, which alleges that “[d]efendants, through some of its senior chaplains, illegally disapproved of, censored, or criticized the Non-liturgical religious speech” of five of the plaintiffs. Compl. ¶ 31. The Navy argues that “these claims are proper ad hoc claims, albeit improperly joined,” and thus the Court should sever the claims and permit refiling in individual actions, as originally contemplated in the Severance Order. MTD at 13. The Navy further requests, however, in light of the chaplains’ “repeated efforts to use newly filed cases to relitigate issues decided in In re Navy Chaplaincy,” that the Court enjoin the chaplains from filing any new complaint without first seeking leave of this Court. Id. at 13–14. The Court concludes that severance and a narrowly tailored injunction is warranted, as to both the claims in Count 4 as well as the surviving retaliation and constructive discharge claims.
In this Circuit, “a court may employ injunctive remedies to protect the integrity of the courts and the orderly and expeditious administration of justice.” Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985). Though pre-filing injunctions most frequently issue against pro
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se litigants, courts in this Circuit and others have also used them, in appropriate circumstances, against counseled plaintiffs. See, e.g., Kaempfer v. Brown, 684 F. Supp. 319, 325–36 (D.D.C. 1988) (imposing pre-filing injunction on counseled parties where they had harassed a bank attempting to develop property), aff’d 872 F.2d 496 (D.C. Cir. 1989); Eliahu v. Jewish Agency for Israel, 919 F.3d 709, 714–16 (2d Cir. 2019) (affirming pre-filing injunction on plaintiffs who received “assistance of counsel” where they had “demonstrable history of vexatious and baseless litigation”); Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062–63 (9th Cir. 2007) (affirming pre-filing injunction on counseled plaintiff where plaintiff had used lawsuits as “a harassing device”); Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir. 1998) (affirming pre-filing injunction on counseled plaintiffs where they had a “history of repetitive and vexatious litigation”); Connor v. Stewart, 2018 WL 4169150, at *5 (W.D. Tex. Aug. 30, 2018) (imposing pre-filing injunction on counseled plaintiff where his “high volume of motions” had placed “burdens” on the court and the defendants); Clavon v. Roscoe BK Restaurant, Inc., 2012 WL 12903054, at *5–6 (C.D. Cal. Oct. 16, 2012) (imposing pre-filing injunction on attorney because the court found it “likely that counsel will continue to make frivolous claims against Defendants”); Orlando Residence Ltd. v. GP Credit Co., 609 F. Supp. 2d 813, 817 (E.D. Wis. 2009) (imposing pre-filing injunction on counseled plaintiff where he had a history of filing repeated lawsuits to evade judgments obtained against him).
Indeed, some courts have noted that counseled plaintiffs should not be given quite as much latitude in the pre-filing injunction inquiry as is “usually granted to pro se litigants,” given that they have had the benefit of an attorney’s advice as to the relevant law and procedural rules. Eliahu, 919 F.3d at 715. However, even in the case of counseled plaintiffs, when “fashioning an appropriate remedy” for harassing or repetitive litigation, courts must “take great care not to
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unduly impair a litigant’s constitutional right of access to the courts.” In re Powell, 851 F.2d 427, 430 (D.C. Cir. 1988). Accordingly, in this Circuit, three requirements must be fulfilled before a pre-filing injunction is granted. A court must have (1) “provided notice and an opportunity to be heard”; (2) “created an adequate record for review”; and (3) “made substantive findings as to the frivolous and harassing nature of the litigants’ actions.” Kaempfer, 872 F.2d 496, at *3. Here, the Court will take each requirement in turn.
First, the chaplains have received notice and been provided an opportunity to be heard on the question whether a pre-filing injunction should issue. The Navy’s motion to dismiss alerted the chaplains to the injunction request, see MTD at 13–17, and the chaplains’ opposition brief responded to that request in detail, see Pls.’ Opp’n at 28–34. Cf. Caldwell v. Obama, 6 F. Supp. 3d 31, 50 (D.D.C. 2013) (deeming first requirement satisfied where court document informed plaintiff of the possibility of injunction and plaintiff responded via argument in briefing).
Second, in evaluating whether the record is sufficient to warrant a pre-filing injunction, the Court finds that the number and content of plaintiffs’ prior filings provide sufficient basis for consideration of a pre-filing injunction. The Court has reviewed the close similarities between the present lawsuit and at least four prior lawsuits that the Navy has identified, all of which were filed and pursued by plaintiffs’ current counsel and all of which have the same goal: to challenge the allegedly discriminatory nature of the Navy’s selection board policies and procedures. See Compl. ¶ 13 (“Plaintiffs attack Navy personnel systems’ procedures and practices that grant senior chaplains unbridled authority and discretion over the promotions and careers of other chaplains with no accountability.”); Consolidated Compl. ¶ 1b, In re Navy Chaplaincy, No. 07-mc-269 (D.D.C. 2012) (challenging “religious preferences and discrimination in the U.S. Navy Chaplains Corps . . . in its accession, promotion, assignment, retention and separation systems and decision
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making processes”); Harkness v. Sec’y of Navy, 858 F.3d 437, 442, 447 (6th Cir. 2017) (describing a prior suit in which plaintiff “sought a declaratory judgment that the Navy’s chaplain promotion procedures violated the Establishment Clause,” and resolving another suit in which plaintiff alleged that “promotion board procedures result in denominational preferences in chaplainpromotion decisions”); Compl. ¶ 1, Gibson v. U.S. Navy, No. 06-cv-187 (N.D. Fla. 2006), ECF No. 1 (challenging “religious discrimination and violations of the First and Fifth Amendments and the [RFRA] in the U.S. Navy Chaplains Corps . . . promotion, accession, assignment, retention and separation systems and decision making processes”). Each of the plaintiffs in this case was also a plaintiff in one or more of the prior lawsuits. Similarly, in the two remaining actions in the Eastern District of Virginia stemming from the instant complaint, the two severed plaintiffs—again represented by the same counsel—have twice more challenged the Navy’s selection board procedures. See First Am. Compl. ¶ 10, Lancaster v. Sec’y of Navy, No. 2:19-cv-00095 (E.D. Va. 2019), ECF No. 29 (“CH Lancaster attacks Navy personnel systems’ procedures and practices . . . .”); Compl. ¶ 9(b), Wilson v. Sec’y of Navy, No. 2:19-cv-00515 (E.D. Va. 2019), ECF No. 1 (“CH Wilson challenges Navy and CHC specific personnel systems’ procedures and practices . . . .”).
As demonstrated by this very case, plaintiffs and their counsel persist in filing repetitive and duplicative complaints despite having received lengthy decisions outlining precisely why their systemic challenges fail. See, e.g., Navy Chaplaincy, 323 F. Supp. 3d at 43–50; cf. Caldwell, 6 F. Supp. 3d at 51 (imposing pre-filing injunction on plaintiff who persisted in filing repetitious complaints despite having received detailed “judicial decisions . . . regarding the reasons compelling the previous dismissals of his claims”). Beyond those filings, plaintiffs and their counsel have also made repetitious challenges to various rulings in the Navy Chaplaincy litigation.
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For instance, as already mentioned, this Court has now adjudicated four separate challenges to the constitutionality of § 613a and its predecessor statute, despite repeated warnings to plaintiffs to cease further challenges.
Third, regarding the frivolous, duplicative, or harassing nature of plaintiffs’ actions, the D.C. Circuit has cautioned that a pre-filing injunction “should remain very much the exception to the general rule of free access to the courts.” Powell, 851 F.2d at 431 (internal quotation marks omitted). This Court takes the D.C. Circuit’s caution seriously. Nonetheless, the Court finds that, in this case, plaintiffs’ actions are duplicative and harassing, constituting an “unwarranted burden on the orderly and expeditious administration of justice.” Smith v. Scalia, 44 F. Supp. 3d 28, 47 (D.D.C. 2014) (internal quotation marks omitted). As detailed above, plaintiffs have repeatedly filed complaints making the same substantive claims, even after a federal court has already resolved those claims. Plaintiffs and their counsel are unrepentant; indeed, they characterize their actions in filing such duplicative complaints around the country as mandatory, because forum shopping is “the duty of the attorney to his client” and an “inherent responsibility in our legal system.” Pls.’ Opp’n at 28; see also id. at 31 (stating that it would be “malpractice” for an attorney not to forum shop and that “nothing precludes [plaintiffs] from going to a more friendly forum” if their “major arguments are dead on arrival” in another court). Plaintiffs also assert that they are entitled to rehash issues already decided if they think the Court’s decisions were “bizarre,” “suggest[] prejudice,” or if it was “clear [that] justice was not likely.” Id. at 31. These actions harass the Navy by forcing it to repeatedly relitigate previously resolved claims and issues. See Mikkilineni v. Penn. Nat’l Mut. Ins. Co., 271 F. Supp. 2d 142, 149 (D.D.C. 2003).
Moreover, plaintiffs and their counsel apparently believe that they are justified in making false representations to a court where it serves their interests. For instance, in the joint motion for
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severance, plaintiffs (through counsel) represented to this Court that they did not believe any of the requirements for joinder were met as to the ad hoc claims. See Joint Severance Mot. at 3–4. They then expressly contradicted that assertion in the instant complaint. Compl. ¶¶ 4–9 (arguing that joinder is appropriate). They now justify this about-face by arguing that they had no real choice but to get the claims out of this Court as quickly as possible so they could “seek quicker resolution and relief elsewhere.” Pls.’ Opp’n at 4–5. But the Court does not take such a light view of false or misleading representations made to it by counsel, which tend to frustrate and disrupt the justice system.
Based on plaintiffs’ actions thus far and their insistence that repetitious filings and forum shopping are mandatory to vindicate their interests, the Court deems it surpassingly likely that absent a pre-filing injunction, the refiling of any surviving claims will almost certainly be broadened to include challenges to the Navy’s selection board policies and procedures that have already been resolved by this Court—in the 2018 opinion and again today. See Carr v. Tillery, 591 F.3d 909, 921 (7th Cir. 2010) (“The unlikelihood, in view of the history of [plaintiff’s] litigation with the defendants, that he will accept defeat gracefully suggests that the remedy may be needed in this case.”). Consequently, the Court concludes that a narrowly tailored prospective filing restriction is necessary.
The Court will sever the surviving retaliation, constructive discharge, and interference with religious free speech claims. And it will permit plaintiffs to refile those ad hoc claims in this Court or any other appropriate district Court, in individual complaints (not joined with any other plaintiff). However, any plaintiff who wishes to refile his or her claims in any federal court5 must
5 The Court’s injunction power extends to barring plaintiffs from refiling in any federal court without leave of this Court. See Urban, 768 F.2d at 1500 (enjoining plaintiff from “filing any civil action in this or any other federal court of the United States”); see also Crumpacker v. Ciraolo-Klepper, 715 F. App’x 18, at *20 (D.C. Cir. 2018) (affirming nationwide pre-filing injunction); Kaempfer, 872 F.2d 496, at *1 (affirming injunction barring party from
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first seek leave from this Court within thirty days, that is, by not later than May 21, 2020. To do
so, a plaintiff must file a motion with this Court that includes specific information about all prior
cases that he or she has filed against the Navy and that demonstrates that the proposed individual
complaint properly alleges only ad hoc claims of retaliation, constructive discharge, or interference
with religious free speech and does not raise any claims or issues that have already been resolved.6
The proposed individual complaint must be attached to the motion for leave to file. If any plaintiff
does not file such a motion within thirty days of the issuance of this opinion and accompanying
order, his or her individual ad hoc claims will be dismissed with prejudice.
The Court has endeavored to make this injunction as narrow as possible and to do no more
than “place[] limits on a reasonably defined category of litigation because of a recognized pattern
of repetitive, frivolous, or vexatious cases within that category.” Feathers, 141 F.3d at 269. As
such, the Court emphasizes that the injunction does not restrict plaintiffs’ access to the courts
generally. Instead, it applies only to the narrow category of litigation against the Navy for alleged
religious discrimination, within which the Court has found that plaintiffs have been engaged in
“commencing litigation against [a specific bank] in any forum” without first “seeking [the Court’s] permission”); Martin-Trigona v. United States, 779 F.2d 72, 74 n.* (D.C. Cir. 1985) (affirming the dismissal of a case in the District Court for the District of Columbia because the plaintiff violated the District of Connecticut’s order enjoining the plaintiff from filing without leave of the court “any action in any court of the United States” connected with his ongoing bankruptcy proceeding); Hall v. McAleenan, 2019 WL 2569914, at *6 (D.D.C. June 21, 2019) (noting that court has equitable power to determine whether scope of injunction extends to enjoining plaintiff from “filing any suit in courts in this district or in any other federal court,” and entering injunction barring plaintiff from “filing suit in any federal court . . . without leave of this Court”); U.S. Bank Nat’l Ass’n v. Poblete, 2017 WL 598471, at *9 (D.D.C. Feb. 14, 2017) (enjoining party from “any subsequent filing in any federal court or District of Columbia Superior Court without first obtaining leave from this Court”); Davis v. United States, 569 F. Supp. 2d 91, 99 (D.D.C. 2008) (enjoining plaintiffs from “filing suit in federal court” where they had repeatedly filed cases with similar allegations in the Western District of Missouri and the District of Columbia).
6 The Court warns plaintiffs and their counsel against pursuing the course that appears to have been taken in the remaining two actions in the Eastern District of Virginia, where the court instructed plaintiffs to file amended complaints “containing allegations pertinent to only” the individual plaintiffs’ cases, yet the complaints again focus on systemic challenges to “Navy personnel systems’ procedures and practices.” See, e.g., First Am. Compl. ¶ 10, Lancaster, No. 2:19-cv-00095. The Court emphasizes that it will not grant leave to file any proposed complaint that focuses on systemic challenges of the type outlined supra, pp. 7–11. Additionally, if plaintiffs do attempt to again revive their systemic challenges or improperly join plaintiffs together in violation of this Court’s express instructions, the Court will be forced to consider appropriate sanctions under Fed. R. Civ. P. 11(c). Cf. Sparrow v. Reynolds, 646 F. Supp. 834, 838–40 (D.D.C. 1986).
20

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repetitive and harassing litigation. See Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1524 (9th Cir. 1983) (“The general pattern of litigation in a particular case may be vexatious enough to warrant an injunction in anticipation of future attempts to relitigate old claims.”). The Court deems this limited constraint on plaintiffs and their counsel necessary to promote the “orderly and expeditious administration of justice.” Urban, 768 F.2d at 1500.
Conclusion For the foregoing reasons, the Court will grant the Navy’s motion to dismiss in part and deny it in part, sever the surviving individual ad hoc retaliation, constructive discharge, and interference with religious free speech claims, and enjoin plaintiffs from refiling those claims without first seeking leave from this Court within thirty days of the issuance of this opinion and accompanying order.

Dated: April 21, 2020

/s/ JOHN D. BATES United States District Judge

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 Case 2:19-cv-00515-RAJ-DEM Document 11 Filed 01/21/20 Page 1 of 10 PageID# 263

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

FILED

BARBY EARL WILSON, Plaintiff,
V.

CLhHK, U.S. DiyiHICTCOURT
NORFOLK, VA
CIVIL ACTION NO.2:19-cv-515

SECRETARY OF THE NAVY,et al.,
Defendants. MEMORANDUM OPINION AND ORDER
Before the Court is a Motion to Dismiss from the Secretary of the Navy, et al. ("Defendants") under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF Nos. 5-6. Plaintiff Barby Earl Wilson("CH Wilson") has also requested a hearing on Defendants' Motion to Dismiss. ECF No. 10. After reviewing the parties filings in this case, the Court finds that this matter is ripe for judicial determination and that a hearing on the Motion to Dismiss is not necessary. Accordingly, CH Wilson's request for oral argument is DENIED. For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY
At all times relevant to this case, the Navy divided its Chaplain Corps into four groups in order to serve the religious needs of servicemembers: liturgical Protestants, non-liturgical Protestants, Roman Catholics, and Special Worship. See In re Navy Chaplaincy, 323 F. Supp. 3d 25,30(D.D.C. 2018). CH Wilson was a member ofthe Navy Chaplain Corps from 1977 until his retirement in 1994. ECF No. 1 at 4, 18. The proeedural history of the instant case is beyond dispute. It represents the eulmination of CH Wilson's decades-long participation in a series of
1

Case 2:19-cv-00515-RAJ-DEM Document 11 Filed 01/21/20 Page 2 of 10 PageID# 264
cases that came to be called In re Navy Chaplaincy {"'Chaplaincy'"). The original Chaplaincy plaintiffs,(CH Wilson among them)filed their suit in D.C. District Court on November 5, 1999, alleging that the Navy discriminated against chaplains endorsed by the Chaplaincy of Full Gospel Churches ("CFCG"), a subgroup within the non-liturgical Protestant faith group category. ECF No. 1 at ^12a. The Chaplaincy plaintiffs contended the procedures ofthe Navy's chaplain selection boards violated the First Amendment's Establishment Clause, the Fifth Amendment's Equal Protection Clause, and the Religious Freedom Restoration Act ("RFRA"). Chaplaincy, 323 F. Supp. 3d at 38.
After decades of litigation and procedural maneuvering, the D.C. District Court severed the Chaplaincy plaintiffs' fact-specific ad hoc claims of individual chaplains from their broad constitutional and statutory claims on the Navy's procedures for promoting chaplains. Id. at 2.d.ii. On August 30,2018,the D.C. District Court granted summaryjudgment to the Navy on the Chaplaincy plaintiffs' constitutional and statutory claims regarding the Navy's staffing and procedure of chaplain selection boards. See generally Chaplaincy, 323 F. Supp. 3d 25 (granting the Navy summary judgment against claims of unconstitutional discrimination against nonliturgical Protestants, denying the constitutional challenge to 10 U.S.C. § 613(a), and denying plaintiffs' requests for additional discovery). However, individual chaplains were still permitted to bring their ad hoc claims in the appropriate jurisdiction.
CH Wilson filed his Complaint in the instant matter on September 27, 2019. ECF No. 1. On December 2, 2019, the Defendants filed their Motion to Dismiss. ECF Nos. 5-6. CH Wilson filed his Response Memorandum in Opposition to Defendants' Motion to Dismiss on December 16, 2019. ECF No. 7. On December 23, 2019, Defendants' filed their Reply to CH Wilson's Response.ECF No.8. On January 6,2019,CH Wilson requested a hearing on Defendants' Motion

Case 2:19-cv-00515-RAJ-DEM Document 11 Filed 01/21/20 Page 3 of 10 PageID# 265
to Dismiss. ECF No. 10. However, the Court has determined that a hearing on the Motion to Dismiss is not necessary and will dispose of it in this Order.
11. LEGAL STANDARDS
A. Dismissal Under Rule 12(b)(6) Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of actions that fail to state
a claim upon which relief can be granted. The United States Supreme Court("Supreme Court") has stated that in order "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to reliefthat is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662,678(2009)(quoting Bell All. Corp. v. Twomhly,550 U.S. 544,570(2007)). Specifically,"[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Moreover, at the motion to dismiss stage, the court is bound to accept all of the factual allegations in the complaint as true. Id. However,"[t]hreadbare recitals ofthe elements ofa cause of action, supported by mere conclusory statements, do not suffice." Id. Assessing the claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Id. at 679. B. Res Judicata
The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as res judicata. Taylor v. Sturgell, 553 U.S. 880, 892 (2008). Under the doctrine of claim preclusion, a final judgment forecloses successive litigation of the very same claim, whether or not the successive litigation raises the same issues as the earlier suit. Id. quoting New Hampshire v. Maine,532 U.S. 742,748(2001). Issue preclusion bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination

Case 2:19-cv-00515-RAJ-DEM Document 11 Filed 01/21/20 Page 4 of 10 PageID# 266
essential to the prior judgment, even if the issue recurs in the context of a different claim. Id. The purpose of res judicata is to protect against "the expense and vexation of multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibility of inconsistent decisions. Taylor, 553 U.S. at 892 quoting Montana v. United States, 440 U.S. 147,
153-54(1979). Res judicata is an affirmative defense that may be raised under in a 12(b)(6) motion if
grounds for the motion clearly appear on the face ofthe complaint.Andrews v. Daw,201 F.3d 521, 524 n.1 (4th Cir.2000)citing Richmond, Fredericksburg&Potomac R.R. Co. v. Forst,4 F.3d 244, 250(4th Cir. 1993). To establish resjudicata as a defense,a party must establish the following:(1) a finaljudgment on the merits in a prior suit;(2)an identity ofthe cause ofaction in both the earlier and the later suit; and(3)an identity ofparties or their privies in the two suits. Andrews,201 F.3d at 524 citing Jones v. Sec. & Exch. Comm 'n, 115 F.3d 1173, 1178 (4th Cir. 1997), cert, denied, 523 U.S. 1072(1998).
III. DISCUSSION
The Complaint proports to allege five grounds for relief by CH Wilson against Defendants. For the following reasons, the Court makes the following findings:(1) there are no grounds for relief on Count 1 due to the doctrine of issue preclusion;(2) there are no grounds for relief on Counts 2, 3, and 5 due to the doctrine of claim preclusion; and(3)there are no grounds for relief on Count 4 due to the doctrine of issue preclusion. A. Count I, Retaliation
Count 1 proports to allege an ad hoc claim ofretaliation stemming from CH Wilson's 1983 intemal naval complaint about the "religious prejudice, suppression, and hostility by his Lutheran command chaplain, CDR John Spreier ("CDR Spreier")." ECF No. 1 at ^ 12. In essence, CH

Case 2:19-cv-00515-RAJ-DEM Document 11 Filed 01/21/20 Page 5 of 10 PageID# 267
Wilson alleges that religious animus motivated CDR Spreier's evaluations ofhim before and after his internal complaint in 1983 and that institutionalized discrimination flowing from that animus prevented him from being promoted until his retirement from the Navy in 1994. Id. at ^ 13-19. CH Wilson further alleges that the Navy's "pro-liturgical culture" allowed CDR Spreier and others to illegally retaliate, punish,and harm him as"payback"for exposing wrongdoing over the course of his 171/2 year career. Id. at 23, 24. Finally, CH Wilson alleges that because the Chaplaincy court did not outline the elements of retaliatory discharge in its order granting summary judgment to the Navy, the Chaplaincy litigation did not address CH Wilson's present claim of retaliation.
ECF No. 7 at 5-7.
Notwithstanding CH Wilson's sharp contentions that Count 1 was not resolved in the previous litigation, it is abundantly clear that this claim represents an attempt to relitigate the constitutional issues previously decided in Chaplaincy. Despite the fact that CH Wilson's Complaint does allege individualized factual contentions in an attempt to support an ad hoc retaliation claim, these allegations are overwhelmed by claims of systemic abuse that were the subject of the Chaplaincy litigation. Most tellingly, CH Wilson's prayer for relief on Count 1 requests a declaration that "the challenged promotion procedures are improper and unconstitutional" and would require the Navy to retroactively modify CH Wilson's personnel file after issuing new promotions board decisions without "undue religious influence." See ECF No. 1 at 23. This reveals the true nature of CH Wilson's purported retaliation claim—an attempt to individualize the Chaplaincy plaintiffs' grievances with the promotional decisions of the Navy Chaplain Corps so they may be understood as retaliation specific to CH Wilson and take a second shot at the relief that was denied in the Chaplaincy litigation. See Chaplaincy, 323 F. Supp. 3d at 38 ("[The Chaplaincy plaintiffs] seek, among other things, a declaration that....the Navy must

Case 2:19-cv-00515-RAJ-DEM Document 11 Filed 01/21/20 Page 6 of 10 PageID# 268
reconsider any adverse action taken against any plaintiff by [chaplain selection boards]"). In order to view CH Wilson's retaliation claims as distinct from the claims ofthe Chaplaincy plaintiffs,the Court would have to assume that Wilson's 1983 complaint about CDR Spreier was the basis for the Navy's alleged discrimination against him until his retirement in 1994 and that individualized discrimination is distinct from the issues decided in Chaplaincy. This interpretation of the Complaint is patently implausible.
The Court has no doubt about the authenticity of CH Wilson's religious convictions, his personal grievances with CDR Spreier, or his general frustration with his rank in the Navy—these dynamics are abundantly clear from the allegations in the Complaint. However, CH Wilson's Complaint repeatedly alleges that the retaliation he suffered because of his issues with CDR Spreier was rooted in a systemic pro-liturgical preference and afflicted the Navy's promotional decisions throughout his career—even though the Chaplaincy court has already ruled that the Navy's method of promoting chaplains was not unconstitutionally discriminatory. See ECF No. 1 at 9a, 9b, 10-13, 18, 19, 21-28 (alleging systemic pro-liturgical bias or non-liturgical discrimination). In sum, the Complaint fails to divorce CH Wilson's claims of retaliatory mistreatment from the Chaplaincy court's final judgment denying relief on the Chaplaincy plaintiffs'systemic religious discrimination claims.Based on the Complaint itself,the Court would be unable to reach a judgment on the substance of CH Wilson's retaliation claims or provide his requested relief without revisiting the constitutionality of the Navy's method of promoting chaplains based on denominational affiliation. This is a textbook case of issue preclusion. Therefore, Defendants' Motion to Dismiss on Count 1 is granted.

Case 2:19-cv-00515-RAJ-DEM Document 11 Filed 01/21/20 Page 7 of 10 PageID# 269
B.Counts 2,3 and 5(the Resolved Constitutional and Statutory Claims) The Complaint concedes that the Chaplaincy litigation resolved a longstanding discovery
dispute regarding documents from commander promotion boards, a statute of limitations tolling issue under 28 U.S.C. § 2401, and constitutional claims under the First and Fifth Amendments. See EOF No. 1 at 2.d,2.d.i, 2.d.iii. A review ofthe Chaplaincy summaryjudgment order reveals the following:(1)the court rejected the Chaplaincy plaintiffs' constitutional challenge to 10 U.S.C. § 613a regarding the disclosure of chaplaincy selection board proceedings for at least the third time;'(2)the court applied previous rulings from the D.C. District Court on the application ofthe statute of limitations found in § 2401;^ and (3) the court rejected the Chaplaincy plaintiffs' constitutional challenges and associated RFRA challenges to the Navy's selection board policies
and procedures.^ CH Wilson now argues the Chaplaincy litigation does not address Counts 2,3,and 5 ofhis
Complaint because the retaliation claim in Count 1 creates a new context for the constitutional and statutory arguments previously disposed of by the D.C. District Court. ECF No. 7 at 16-25. CH Wilson correctly notes that his claims in Counts 2, 3, and 5 "are directly related to his retaliation claim." Id. at 16. However, instead of providing new context that forms the basis for properly
'In re Navy Chaplaincy,323 F. Supp. 3d 25,50-55(D.D.C.2018). The Chaplaincy plaintiffs were repeatedly warned about the frivolous nature oftheir § 613a arguments.
"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."
Plaintiffs have not heeded this admonition, offering no new authority to buttress their third attempt to assert a constitutional right to evidence in support oftheir constitutional claims. Id. at 51 quoting In re Navy Chaplaincy,512 F. Supp.2d 58,62(D.D.C. 2007). - In re Navy Chaplaincy, 323 F. Supp. 3d at 35-37. The court had previously ruled that the statute of limitations precluded the Chaplaincy plaintiffs from bringing claims arising before November 5, 1993. Id. The Court recognizes that CH Wilson seeks to circumvent the rulings ofthe D.C District Court on the statute oflimitations issue because most ofthe factual assertions supporting his retaliation claim in Count 1 occurred before November 5. 1993.
3 Id. at 38-50.

Case 2:19-cv-00515-RAJ-DEM Document 11 Filed 01/21/20 Page 8 of 10 PageID# 270
presented ad hoc claims,the relationship between CH Wilson's purported retaliation claim and the remaining claims actually reinforces the conclusion that every claim presented by the Complaint is precluded by res judicata. The Court reiterates the conclusion that the doctrine of issue preclusion applies to Count 1 because the systemic issues with the Navy's selection board procedures that form the basis for that claim have been thoroughly addressed in the Chaplaincy litigation. See Chaplaincy, 323 F. Supp. 3d at 31 ("[o]ver 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").
The systemic issues alleged in support of Count 1 are indistinct from the issues raised in Counts 2, 3, and 5, which have been exhaustively litigated in Chaplaincy. The Chaplaincy plaintiffs may ultimately prevail on their constitutional and statutory issues, but their pending appeal to the D.C. Circuit is their sole recourse for relief from the unfavorable judgments of the D.C. District Court. CH Wilson will not obtain his desired relief before this Court by reframing the same claims and issues in an effort to circumvent the final judgment in Chaplaincy—a case to which he as been a party for over twenty years.In sum.Count 1 provides no new context to refresh the constitutional and statutory claims raised in Counts 2, 3, and 5, which are identical to the to the Chaplaincy plaintiffs' claims resolved by the D.C. District Court. Therefore, the doctrine of claim preclusion applies to Counts 2, 3, and 5.
C. Count 4, Constructive Discharge In his Complaint,CH Wilson alleges that his "acceptance of[Temporary Early Retirement
Authority]("TERA") was a constructive discharge resulting from the [Navy Chaplain Corps] retaliation and creation of a hostile and intolerable environment to punish CH Wilson's exercise of his rights as a chaplain to accurately reflect and represent his faith group." ECF No. 1 at ^ 39.

Case 2:19-cv-00515-RAJ-DEM Document 11 Filed 01/21/20 Page 9 of 10 PageID# 271
CH Wilson also admits that his constructive discharge claim cannot be decoupled from the purported retaliation claim rejected by this Court in its evaluation of Count 1. ECF No. 7 at 28 ("without a legal determination ofthe legality ofhis [failures ofselection] and retaliation cause of action,[CH Wilson] has no constructive discharge claim"). CH Wilson is correct in the sense that the defects in his purported retaliation claim are also fatally injurious to his constructive discharge
claim.
CH Wilson's allegations in Count 4 appear to qualify as an ad hoc claim on the surface because it uses the individualized claim ofconstructive discharge as its title. However,the title of the claim itself does not obscure his true objective; successive litigation of the same claims and issues that were resolved by the Chaplaincy court. The Court is not distracted from the duplicative nature of the constitutional and statutory arguments raised in Count 4 because the Complaint makes it impossible. In articulating his constructive discharge claim, CH Wilson reiterates that he "retired in 1994 with MVi years of service, having seen that religious and racial discrimination would not let him be promoted"and alleging that the "intolerable atmosphere"created by the Navy Chaplain Corps' hostility to his religious practices and faith left him no choice but to retire. ECF No. 1 at ^1 18; See also id. at 38-40 (reiterating generalized accusations of retaliation based in religious bias).
Tellingly, the Complaint does not allege any specific facts surrounding the circumstances of CH Wilson's voluntary acceptance of early retirement that could support an ad hoc claim of constructive discharge (other than the same broad allegations of religious bias). In CH Wilson's own words, the reason that he quit was because of the Navy's systemic bias against his religious beliefs and the accompanying hostility flowing from that bias. Once again, all roads lead back to the inescapable issue presented by every ground for relief Complaint: CH Wilson is still arguing

Case 2:19-cv-00515-RAJ-DEM Document 11 Filed 01/21/20 Page 10 of 10 PageID# 272

that his constructive discharge was a product of the Navy's institutionalized animosity for nonliturgical theologies. These issues of institutionalized religious discrimination have been

exhaustively addressed in the Chaplaincy litigation. Therefore, Count 4 is also subject to issue

preclusion.

IV. CONCLUSION
Based on the foregoing reasons, Defendants' Motion to Dismiss is GRANTED.

The Court DIRECTS the Clerk to provide a copy of this Order to the parties.

IT IS SO ORDERED.
Norfolk, Virginia
January ^j,2020

Raymond A.Jackson
United States District Judge

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 Case 1:19-cv-02755-JDB Document 1 Filed 03/01/19 Page 1 of 76

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

ALLEN L. LANCASTER 172 North Liberty Spring Rd. Suffolk, VA 23434
and
BARBY EARL WILSON 5305 Roves Ct. Virginia Beach, Va 23464
and
RICHARD ARNOLD 2113 Road M Emporia, KS 66801
and
MICHAEL BELT 17722 North 79th Ave. Glendale, AZ 85303
and
WILLIAM C. BLAIR 2658 Widdy Bostwick Ln. Jamestown, NY 14701
and
RICK P. BRADLEY 2580 Grummer Lane Conway, Arkansas.
and
ANDREW CALHOUN 3269 East Bonnie Drive Oak Creek, WI 53154
and

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Case No. 2: __1_9_c_v_9_5_

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MARTHA CARSON

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7148 State Route 329

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Guysville, OH 45735

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TIMOTHY DEMY

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7 Ellen Rd.

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Middletown, RI 02842

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JOSEPH DUFOUR

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1755 Campbell Rd.

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Waxahachie, TX 75167

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ALAN GARNER

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9844 Rosemont Ave., Apt 205

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Lone Tree, Co. 80124

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JOHN GORDY

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371 Mill Hamlet Rd. NW

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Charleston, TN 37310

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FURNISS HARKNESS

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400 Green Acres

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Memphis, TN 38117

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TOM KLAPPERT

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7699 Kuhn Road

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Greencastle, PA 17225

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MICHALE LAVELLE

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13921 East Poelstra Street

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Vail, AZ 85641

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GEORGE W. LINZEY

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1111 Seacoast Drive #61

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Imperial Beach, CA

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JAMES LOOBY

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1713 County Rd. 318

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Early, TX 76802

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WALKER MARSH, JR.

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125 Whisperwood Blvd.

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Slidell, LA. 70458

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DENISE Y. MERRITT

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4405 Biway Cir.

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Fayetteville, NC 28311

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DAVID MITCHELL

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1423 Norton St.

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Durham, NC 27701

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JAIRO MORENO

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2009 Oak Brook Dr.

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Portland, TX 78374

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RENE PORTER-STEWART

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2028 Farmdale Lane

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Spearfish, S.D. 57783

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RAFAEL J. QUILES

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203 Orchard Grove Place

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Oldsmar, FL 34677

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DANIEL ROYSDEN

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305 Sandalin Lane

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Peachtree City, GA 30269

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MARY HELEN SPALDING

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610 Walk the Plank

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La Jolla, TX 78560

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ARMANDO TORRALVA

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6637 LaBianca Dr.

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Corpus Christie, TX 78414

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DAVID S. WILDER

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105 La Salle St.

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Wilmington, NC 28411

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v.

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THE SECRETARY OF THE NAVY

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Room 4E686 - The Pentagon

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Washington, D.C. 20350-1000

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The Chief of Naval Personnel

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701 South Courthouse Road

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Arlington, Virginia 22204

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The Navy Chief of Chaplains

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2000 Navy Pentagon, Room 5E270

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Washington, D.C. 20350

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COMPLAINT
I. INTRODUCTION AND BACKGROUND
1. This complaint raises claims of retaliation by the Navy Chaplain Corps (the “CHC”) and
some of its senior chaplains against these plaintiffs for various lawful exercises of their faith,
duties as Navy chaplains and other constitutional and statutory rights. It also raises claims of
unlawful interference with certain plaintiffs’ religious speech, including preaching and religious
services; and constructive discharge for some plaintiffs because the challenged retaliation
resulted in failures of selection (“FOS”) leading to either involuntary early separation from the
Navy or forced early retirement before reaching 20 years service.
2. This complaint is the continuation of a series of three federal cases brought by three separate groups of Non-liturgical Navy chaplains1 challenging denominational preferences,
discrimination and retaliation in the U.S. Navy and its CHC. That litigation began in 1999. The
D.C. District Court consolidated those three cases, explained below, into In re Navy Chaplaincy,
07-mc-269, in 2007. The claims here were severed with leave granted to file them in other
1 The Navy categorizes its chaplains into four denominational groups generally based on religious practices and beliefs: (1) Roman Catholic (“RC”) (a single denomination); (2) Liturgical Protestant, denominations that follow a set liturgy, follow a lectionary in their worship services, wear vestments and baptize babies. They usually trace their origin to the Protestant Reformation, e.g., Lutheran, Episcopal, Methodist; (3) Non-liturgical Protestant. Faih groups which do not follow a set liturgy or a lectionary, emphasize Bible preaching and baptize adults, e.g., Baptists, Bible churches, Pentecostal and Charismatic churches, congregations and fellowships; and (4) Special Worship, small Christian and non-Christian denominations with unique worship needs, e.g., Orthodox, Muslim, Jewish, Seventh-day Adventist, and other liturgical churches claiming to be “Catholic” but not allied with Rome.
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jurisdictions and/or venues. a. The Chaplaincy of Full Gospel Churches (“CFGC”) and eight of its chaplains
filed suit in the D.C. district court, 11/5/99. Chaplaincy of Full Gospel Churches, et al., v. Danzig [then Sec. of Navy], et al. [various subordinate Navy officials] (“CFGC”), 99-cv-2945 (D.D.C.), ECF No.1.2
CFGC, a recognized Department of Defense (“DOD”) chaplain endorsing agency, challenged Navy and CHC policies and practices that discriminated against CFGC, its chaplains and chaplain candidates in accessions, promotions, continuation on active duty and other personnel actions because of its chaplains’ charismatic or “Full Gospel” Non-liturgical religious beliefs and practices. The Navy commissioned 32 CFGC chaplains between DOD’s July 1984 recognition of CFGC as a chaplain endorsing agency and November 1999 when it filed suit; only seven had been promoted to Lieutenant Commander (“LCDR”), a promotion rate of 22% versus the 80% statutory promotion LCDR rate, see 10 U.S.C. § 523 (establishing Navy Officer grade limits); none of the seven had been promoted to commander (“CDR”), a zero promotion rate versus the average expected CDR promotion rate of 60-70%.
CFGC’s Army and Air Force chaplains’ success contrasted starkly with its Navy experience. The Army appointed as active duty Army chaplains four former CFGC Navy chaplains, three separated for “failure of selection” (“FOS”) to LCDR, and one not continued past his initial 3 year tour. All four were promoted to Major (the Army equivalent of LCDR), and two were promoted to Lieutenant Colonel (Army equivalent of CDR) before retiring or being
2 CFGC initially filed suit as an organizational plaintiff and as representative on behalf of its endorsed Navy chaplains. Eight of its Navy and former Navy chaplains joined the suit as individual plaintiffs. The District Court dismissed CFGC as an organizational plaintiff but allowed it to remain as a representative of its CFGC endorsed Navy chaplains.
6

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forced to retire because of age and/or time in grade. One of the LTC chaplains was the one the Navy did not continue on active duty.
Acts of retaliation by senior Navy chaplains against CFGC chaplains for the exercise of their faith included poor fitness reports (“fitreps”); prejudicial assignments; changing previous agreements or assignments in ways that harmed the CFGC plaintiffs financially, emotionally and professionally; communicating false negative information about CFGC and its chaplains to commanders and selection board members; actual harassment and retaliation on the job, see e.g. Roysden and Merritt, and allowing chaplains theologically hostile to CFGC and its chaplains’ beliefs and worship practices serve as promotion board members using practices that guaranteed CFGC candidates’ FOS.
b. Adair, et al., v. England [then the Secretary of Navy], et al., 00-cv-566, filed 3/17/00, was the second chaplain case filed in the D.C. District Court. The 18 Non-liturgical active duty, retired, and Reserve chaplains challenged Navy religious and denominational preferences; retaliation and discrimination in CHC promotion, selective early retirement (“SER”) and assignments; and a pattern and practice of senior chaplain retaliation and/or interference with Non-liturgical (or “evangelical”) chaplains’ worship services, teaching, and speech.3 See Adair v. England, 31 F.Supp.2d 31 (D.D.C. 2002) (explaining Adair and CFGC plaintiffs’ ). They sought and were granted class action status on behalf of all Navy Non-liturgical chaplains. See Adair v. England, 209 FRD 5, 12-12-15 (D.D.C. 2002) (approving class action). CFGC and Adair were combined for pretrial discovery and motions to facilitate case management and discovery.
Twenty-five additional non-liturgical chaplains requested permission to join Adair as
3 Ron Tomlin was dismissed from Adair after he won a retroactive promotion CDR and assignment to active duty in a separate action challenging decisions by the Navy Board of Correction for Naval Records (“BCNR”) and the Secretary.
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plaintiffs before the court considered and granted class action status. The court initially granted permission for them to join, but after more than a year’s delay, the court denied their joinder motion after class action status was granted. Twenty-three of those 25 rejected chaplains later joined the 2006 Gibson v. U.S. Navy litigation, after the Adair plaintiffs requested the class be dissolved. This followed the District Court’s (i) permitting the Navy to discharge Adair’s last active duty plaintiff, destroying the Adair class and (ii) refusal to apply strict scrutiny to the Navy’s chaplain promotion procedures contrary to the court’s previously stated law of the case. See Adair v. England, 217 F.Supp.2d 7, 14-15 (D.D.C. 2002).
CFGC and Adair were combined for pretrial discovery and pretrial motions to facilitate case management and discovery.
c. Gibson, et al., v. U.S. Navy, 06-cv-1696 (RMU), was originally filed in the Northern District of Florida, 3:06-cv-187, in May 2006, by 41 Non-liturgical Navy chaplains and the Associated Gospel Churches (“AGC”), an evangelical Christian Chaplain endorsing agency.4 One AGC chaplain was an Adair plaintiff; other AGC chaplains who experienced gross discrimination and retaliation sought to join Adair before it became a class action and joined Gibson which sought to represent a class of Non-liturgical chaplains.
Gibson was transferred to the District of Columbia over the plaintiffs’ protests. Many Gibson plaintiffs specifically directed their counsel not to file their case in the District of Columbia because CFGC/Adair case law was hostile to the plaintiffs and contrary to law. The courts rejected plaintiffs’ argument no competent attorney would file a military chaplain religious discrimination case in the District of Columbia given its precedent and plaintiffs’ directions,
4 AGC filed as a plaintiff in its own right and in its representative capacity for its Navy chaplains.
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failing 28 U.S.C. § 1404(a)’s transfer criteria. After Gibson’s appeal process ran its full course, the District Court consolidated CFGC, Adair, and Gibson into one case, In re Navy Chaplaincy, (“Chaplaincy”) 07-mc-269, see ECF No.1.
d. Chaplaincy. The District Court allowed no discovery in Gibson before or after consolidation. The District Court then imposed a stay on all discovery in 2009 when the Chaplaincy plaintiffs moved to compel production of discovery, including unredacted portions of the DOD Inspector General (DODIG) investigation into the CHC’s FY 97 and 98 commander promotion boards. The District Court rejected plaintiffs’ motion and consistent efforts to lift the stay and compel the Navy to produce documents and other discovery it had refused to provide. The D.C. Circuit denied plaintiffs’ motion for a mandamus to lift discovery before summary judgment. Preserving testimony of older plaintiffs was the only Chaplaincy discovery allowed.
After the D.C. Circuit denied plaintiffs’ 2013 motion for a preliminary injunction addressing the CHC’s unique promotion procedures described below, the District Court rejected the plaintiffs’ arguments the Navy’s fraudulent concealment of the causes of action and other equitable considerations required the six-year statute of limitations (“SOL”) waived. The court applied D.C. Circuit precedent holding the SOL was jurisdictional.5 The District Court then denied the plaintiffs’ motion for class action. After a series of subsequent motions addressing jurisdiction, the court divided plaintiffs’ remaining claims into three constitutional claims addressing challenges to CHC procedures and practices and “ad hoc” claims including
5 The District Court acknowledged U.S. v. Kwai Fun Wong, –––U.S. ––––, 135 S.Ct. 1625, 1633 (2015), held the government had the burden to show Congress’s clear intent. Otherwise, courts were to apply normal, appropriate equitable factors to the SOL at issue. a SOL’s words had to unequivocally communicate Congress’s intention the SOL was jurisdictional and Nonetheless, the District Court rejected plaintiffs’ attempts to schedule an interlocutory appeal in order to apply Wong.
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interference with the form of prayer (Count 9), constructive discharge (Count 11), and retaliation (Count 12).
The District Court granted summary judgment to the Navy on the constitutional claims, 8/30/18 and the Court’s 11/8/18 Order, ECF No. 344, severed the remaining “ad hoc” claims granting the plaintiff’s until March 1, 2019, to refile in other venues and jurisdictions. This Complaint complies with the D.C. District Court’s order and addresses these plaintiffs’ retaliation, constructive discharge and interference with certain plaintiffs’ religious speech, practices and forms of prayer.
II. JURISDICTION AND VENUE 3. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331, 1343, and 5 U.S.C. § 702. Venue is appropriate under 28 U.S.C. § 1391(e) since the defendants are a federal agency and its officials and are located in this District’s territory along with some plaintiffs.
Joinder Is Appropriate with These 26 Plaintiffs 4. The 27 plaintiffs in this case reside in 15 different states. Fed. R. Civ. P. (“Rule”) 20(a) (1) allows plaintiffs to join in one action if:
(A) they assert any right to relief jointly, severally, or in the alternative specific to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) the question of law or fact common to all plaintiffs will arise in the action. 5. Some of these plaintiffs’ claims arise at different times, in different places, and from interactions with different defendants but others arise at specific locations from interactions with the same defendant(s). Careful analysis of plaintiffs’ underlying claims show common themes of retaliation occurring at specific locations, arising from the same or similar sources and common expressions of retaliation and religious hostility. These include and often involve the same senior
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chaplains, senior chaplains from specific denominations, offices or levels of authority, whose retaliation arises because of their hostility to other denominations or challenges to their tyrannical behavior, attitudes and discriminatory behavior. 6. Exhibit 1 provides a table identifying eight sources for the 26 plaintiffs’ claims and their overlap and intersection with other plaintiffs’ claims. These are: Charismatic/Pentecostal (10 plaintiffs), a distinct religious group whose beliefs, and style, and manner of worship services are rejected by many denominations; Naples (3) and San Diego (4), two distinct base chapels whose command chaplains retaliated against and destroyed multiple plaintiffs; a board member hostile to a plaintiff (6); offending a Catholic (12); offending the Chief (11); offending a Liturgical Senior chaplain (14); and retaliation or hostility from the Chief’s office (9). For example, RC chaplain CAPT Rock is alleged to have retaliated against Pentecostals Gordy (Naples) and Morino (Okinawa) and two other non-liturgical chaplains in Naples (DuFour and Torralva). Plaintiffs allege no Pentecostal or charismatic supervised by CH Rock was ever promoted. 7. The retaliation claims arising from Naples and San Diego involve RC command chaplains openly hostile to non-Catholics, especially Non-liturgical evangelical and charismatic/Pentecostal. 8. Exhibit 1 also illustrates negative effects of the unconstitutional influence of Catholics due to their reserved seat on every CHC selection board not requiring admirals until FY 2003, following the Chaplaincy litigation challenge to the practice. This denominational preference explains why RCs increased their percentage at every rank from Lieutenant (“LT”) (approximately 20%) until they were one third of CHC Captains (“CAPT”). Their large numbers at the higher ranks and their reserved board seat facilitated the use of the CHC’s blackball promotion system described below as an unchecked and unaccountable instrument of retaliation
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and denominational advancement. Exhibit 2, “38 Years of Denominational Preference” by Dr. Harald R. Leuba, PhD, shows
a consistent denominational hierarchy and preference in promotion rates linked to those denominations that had a Chief of Chaplains. Catholics have the highest promotion rates in every rank, followed by Liturgicals, Southern Baptists, with minority Non-liturgicals and Special Worship groups last or next to last.
The large number of RC Navy admirals saw no problem with this practice. The number of RC CAPTs and CDRS has dramatically decreased since their private board seat was revoked in FY 2003. 9. This grouping of plaintiffs supports and meets Rule 20's criteria. It allows the efficient use of discovery and depositions, conserving resources and supports the speedy resolution of specific groups of claims by allowing controlling questions of law to be decided and applied, e.g., is a challenged practice or retaliation tool a denominational preference or result in one triggering scrutiny of the challenged practice. This facilitates judicial economy. Plaintiffs reserve the right to move for class action status if additional chaplains join the suit after its filing.
THE NATURE OF THIS CASE AND PLAINTIFFS’ CLAIMS 10. This case addresses 27 Non-liturgical Navy Chaplains plaintiffs’ longstanding claims of retaliation and low fitness reports (“Fitreps”); constructive discharge because of unlawful FOS; and interference with their ministry, speaking, preaching and worship services based on denominational prejudice.
This retaliation resulted in plaintiffs’ FOS and either separation for FOS or constructive discharges. Senior Navy chaplains are the perpetrators and sources of these claims, primarily Roman Catholic and/or Liturgical Protestants, in positions of authority, influence and supervision
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representing and acting under the authority of the Navy and its CHC. The actions represent a pattern and practice of illegal retaliation and discrimination based on denominational hostility and prejudice.
Chaplains’ Role as Military Denominational Representatives 11. Chaplains are religious ministry professionals (“RMP”), leaders or clergy of a church, denomination or religious organization endorsed by the organization to represent it to the military. Endorsement is the religious organization’s certification the RMP meets the DOD’s educational requirement, the service’s ministry experience requirement and is qualified to perform the ministry, ordinances and worship rites and services necessary to meet the free exercise needs of the endorser’s military members. DOD Instruction 1304.28, Encl. 2, ¶ E2.1.7 . In other words, chaplains represent their denomination or Endorsing Agent. Loss of endorsement (a loss of professional qualification) is the Endorser’s sole decision regardless of reason and requires separation from the Service. 10 U.S.C. § 643. 12. In keeping with their religious nature and role, chaplains have rank without command, i.e., the authority to exercise the Sovereign’s authority and give orders with the expectation they will be immediately obeyed. Secretary of the Navy Instruction (SECNAVINST) 1730.7B, Subj: Religious Ministry Support Within the Department of the Navy, ¶ 4.a, and Navy regulations limit chaplains’ activities solely to religious duties, barring chaplains from the duties and authority common to all other naval officers:
In accordance with Article 1063 of [Navy Regulations, 1990], chaplains shall be detailed or permitted to perform only such duties as are related to ministry support. Chaplains shall not bear arms. Chaplains shall not be assigned collateral duties which violate the religious practices of the chaplain’s faith group, require services as director, solicitor, or treasurer of funds other than administrator of a Religious Offering Fund, serve on a court-martial or stand watches other than that of duty chaplain. (Emphasis added).
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If captured in time of war, chaplains are categorized as “retained personnel” under the Geneva Convention, required to perform ministry and are exempt from provisions of the Code of Conduct requiring resistence and escape.
The Nature of the Case 13. This is not an anti-Catholic suit or against the Roman Catholic church per se. The focus here is on senior chaplains’ retaliatory actions and abuse of authority, not beliefs, and the CHC’s affirmance and approval of those illegal actions. Plaintiffs attack Navy personnel systems’ procedures and practices that grant senior chaplains unbridled authority and discretion over the promotions and careers of other chaplains with no accountability. IG evidence shows these procedures become uncontrolled instruments of retaliation. 14. Within the CHC there are natural denominational networks. Plaintiffs allege some of these networks have become conduits for senior chaplains to identify junior chaplain who oppose or challenge senior chaplains’ abuse of authority and interference with ministry based on a denominational perspective. These individuals are seen as problems or opponents in the eyes of some chaplains who resent opposition to denominational abuse. These conduits, combined with the unbridled discretion protected by the secrecy of many Navy personnel management procedures, convert these challenged procedures into anonymous instruments of retaliation against which there is no defense absent judicial intervention. IG inspections show these procedures have no “effective guarantees” that exclude denominational factors from influencing or determining promotions. This offends the Establishment, Free Exercise and Due Process clauses and other constitutional protections. 15. These procedures and practices include the following:
a. Promotion procedures encouraging anonymous denominational preferences,
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prejudices and uncontrolled retaliation. IG investigations have identified three specific chaplain promotion procedures unique to the Navy which use anonymous instruments of retaliation with no accountability. At the time many of these challenged acts of retaliation occurred, Navy CHC promotion boards were staffed primarily by chaplains selected by or approved by the Chief of Chaplains (“Chief”).
(i). The Navy’s chaplain promotion board voting system with its small number of board members, 10 U.S.C. § 613a’ bar of board proceedings disclosure, the anonymity of board member votes, and the board member voting procedure’s choice of one of five subjective promotability ratings that determine promotion, 0, 25, 50, 75, 100. Voting Machine at Exhibit 3.
The Navy Inspector General (“NIG”) documented the unchallenged fact this voting procedure allows one board member to both (A) anonymously deny promotion and torpedo a chaplain’s career with no accountability and/or (B) manipulate the board to allow low-quality chaplains to be promoted. This process is called “zeroing out”, see NIG testimony of RADM Black describing “zeroing out” and its effect, Exhibit 4, and CDR Washburn (NIG complainant) describing its common occurrence on promotion boards she had served on, Exhibit 5 .
This “blackball” voting procedure places unbridled authority in hands of a denominational representative acting as a government official with no means to ensure accountability and denominational neutrality when selecting junior denominational representatives for promotion. Despite the NIG and other evidence describing the voting system’s use as an instrument of retaliation, prejudice and or favoritism, the Navy has allowed it to continue and defends its unconstitutional use.
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(ii). Having other chaplains brief a candidate’s record of which no record is kept after which the board votes for promotion based on the briefer’s evaluation. NIG testimony shows the critical importance of a briefer’s briefing for a chaplain’s promotion and the lack of objective criteria evaluating its accuracy. Omitting important positive factors, whether intentional or unintentional, such as special accomplishments, a rater’s positive comments and/or comparisons, overcoming of obstacles, difficult assignments, and awards denies a promotion applicant the full and honest consideration of his record law and regulations require. Omitting important negative information such as discipline infractions, e.g., driving under the influence (”DUI”); administrative action; specific negative counseling; or a rater’s negative comments provides an unfair advantage to a chaplain who would otherwise appropriately FOS. The Army and Air Force require each board member to personally review and evaluate/score each candidates’ record and record each member’s vote.
(iii) Using the Chief or his/her Deputy as a chaplain selection Board President. The Chief and Deputy are rear admirals (RADM) and given a great deal of deference by board members of lesser rank both within and outside the CHC. The NIG investigation of the FY 09 CHC CAPT board documents the negative impact of a subtle and seemingly inconsequential comment by the Deputy, RADM Baker. The FY 97-98 boards IG investigations also demonstrates the impact of the Chief; RADM Holderby admitted (A) he lobbied for a candidate from his own denomination previously FOS and (B) he could influence junior board members as a RADM and Chief.
Several plaintiffs allege the Chief or Deputy were personally hostile to them yet served on promotion boards that denied them promotions.
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b. Granting Roman Catholics unlawful, unaccountable control over promotion boards by placing at least one RC board member on every CHC promotion board for 54 years, beginning in FY 49.6 This unfettered access to the procedures identified in “b” above combined with the practice of RC chaplains meeting together regularly and exchanging information about non-RC chaplains perceived to be hostile to RC interests or chaplains allowed RC chaplains to retaliate against such perceived “enemies” through promotions with impunity. This gave rise to the adage, “don’t cross a Roman Catholic if you want a career as a Navy chaplain.” RC chaplains openly bragged about their network and its illegal effect on chaplains’ promotions and careers. See Declaration of LCDR Jerry Dickerson, Exhibit 7 ¶¶ 13-15 (senior RC chaplain telling him his career was finished because of a false report by another senior RC Chaplain)
c. Failing to provide “effective guarantees” denomination or perceived insults or wrongs based on denominational differences did not become factors in chaplain promotion proceedings and decisions. The testimony of numerous plaintiffs is they were threatened by senior chaplains who claimed to have connections with the either the Chief or knew Senior chaplains who would be on the boards. See e.g., Arnold, Roysden, Wilder. Evidence will show there were denominational networks for large denominations whose chaplains occupied senior billets and often served on selection boards.
d. Allowing board members to discuss a chaplain’s record based only on a board member’s briefing with no record of the comments or guarantees that forbidden, extraneous or unrelated factors outside the record are not introduced into the discussion. IG promotion board investigations show this has happened.
e. Failing to provide “effective guarantees” assignments were made on factors
6 The Navy provided these records in Sturm v. Danzig, 99-cv-2272 (S.D. Cal). Exhibit 6. 17

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neutral to denomination, i.e, denomination did not become a negative factor in making assignments. For chaplains to be successful and promoted, the CHC requires they have certain assignments, including operational tours with either Marines or on a ship. Assigning a chaplain to a “billet” (Navy term for a duty assignment) below the chaplain’s rank or to successive nonoperational billets was and remains a means of retaliation. E.g,, Arnold, Carson, Dufour, Gordy, Roysden, Spalding, Wilder.
Evidence shows there was always one RC in the detailer’s office as either the Senior or Junior Detailer; very other Senior Detailer was an RC until the CFGC and Adair litigation began, although RC’s were only about 20-25% of the CHC. That RC detailer primarily handled RC assignments, but Roysden’s testimony shows he responded to RC requests affecting perceived RC enemies.
f. Failure to ensure the integrity of the CHC official file system so important documents were not removed or documents delivered were actually placed in a chaplain’s file. The Detailer’s office was co-located with the Chief’s office until shortly before the chaplains’ litigation. Several plaintiffs report great difficulty attempting to ensure favorable fitness reports were included in their official file for promotion board review. See, e.g., Bradley, Lancaster.
CAPT Stafford, the Navy’s Minority Affairs Officer, investigated the CHC’s fiscal year (“FY”) 1997 and 98 Commander boards. Exhibit 8. He testified to the DODIG investigating those same boards that he received an anonymous tip that one of the questionable RCs selected for promotion, CH Clark, had received a DUI, an offense that disqualified him for promotion. CAPT Stafford obtained a copy but did not find it in the chaplain’s file the board reviewed.
CH Clark’s missing DUI suggests it had been removed illegally, a deliberate act of preference by some senior chaplain to enhance the candidate’s chance for promotion. Other
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examples abound. This points to the unrestrained influence and control over chaplains’ careers and their records by the Chief of Chaplains, his Deputy, and senior chaplains.
g. Failure to ensure senior chaplains assigned to command chaplain billets, assignments the Chief controlled or approved, were not denominationally hostile to others. Senior RC chaplains at Balboa Naval Medical Center in San Diego, CA, and Naples, Italy, had records of being pro-RC, pro-Liturgical and anti-Non-Liturgical/Evangelical. Evidence in Chaplaincy shows Naples was known as the Evangelical graveyard and the CHC’s indifference to gross discrimination against evangelical chaplains and their congregations by Naples’ RC command chaplains. Similar egregious discrimination occurred at San Diego under CH Young.
h. Senior chaplains providing unregulated input into subordinate chaplains’ fitness reports or actually drafting such reports without objective criteria. For some of these plaintiffs, this has resulted in their damnation by faint praise, exclusion of significant events, contributions or accomplishments and/or subtle negative comments.
IV. PARTIES A. Chaplain Plaintiffs’ and Their Claims 16. Each of the 27 individual chaplain plaintiffs is identified alphabetically for ease of reference below with each plaintiff’s original case indicted by ( ). Each plaintiff has suffered injury(s) as a result of the Navy’s retaliation, messages of denominational preference, and other harm as described herein which has deprived them of fair and equal opportunity for promotion and a career in the Navy, and the corollary injuries flowing from (a) deprivation of their First and Fifth Amendment and statutory rights, (b) violations of statues and regulations; and (c) the harms identified herein. All plaintiffs have suffered from defendants’ message of second-class citizenship expressed through their retaliation, retaliatory acts, and hostility to plaintiffs’ Non-
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liturgical beliefs and practices. Individual plaintiffs’ incidents and injuries identified herein are used as examples to
provide factual support and notice of their claims, they are not a complete list of such injuries. a. RICHARD ARNOLD (Gibson) lives at 2113 Road M, Emporia, KS 66801-8104.
CH Arnold was endorsed by the Southern Baptist Convention (“SBC”), commissioned in the CHC’s Theological Student Program as an Ensign in 1982 and entered active duty as a Navy chaplain in August 1987. He entered the Navy with 3 years prior enlisted service in the Air Force where he rose to the rank of Sargent. After various assignments, he was selected to go to postgraduate school in 1993 and completed his work in 1994. During this time he was promoted to LCDR.
He then reported to Mayport, FL where he worked under the supervision of Roman Catholic (“RC”) Command Chaplain Charles Eis. CH Eis’ strange behavior and conduct led CH Arnold and another chaplain at Mayport, then LCDR Aufderheide, to intercede with the commanding officer to have CH Eis psychologically evaluated for his fitness for service. CH Eis banished CH Arnold from the chapel for his attempt to help CH Eis and protect his command and the Navy. Catholic chaplains accused CH Arnold of having “destroyed Charlie’s career.” CH Eis was later chosen for Selective Early Retirement.
An acquaintance notified CH Arnold that RC CH (CAPT) Oddo made a comment at a Senior CHC leadership meeting, “There is no place in the Navy for Rich Arnold.” This meritless statement was a message from RC CH Oddo to other senior chaplains, particularly Catholics, who might serve on promotion boards, that CH Arnold was “damaged goods.” This statement had no other context except retaliation, given CH Arnold’s outstanding record and service.
That retaliation became evident in CH Arnold’s assignments following Mayport. The
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CHC detailed CH Arnold to LT (O-3) billets although he was a LCDR (O-4). Because the promotion system operates with secret votes and small numbers, CH Arnold believes he was blackballed in retaliation for his role in having CH Eis evaluated and/or as a result of the false information and character assassination related to his role in reporting a senior chaplain’s misconduct and strange behavior. The BCNR denied his appeal of his non-selection to CDR. CH Arnold is now retired after multiple FOS.
b. MICHAEL BELT (Adair) enrolled in the Navy Chaplain Candidate Program (“CC”) as a United Methodist; he changed his endorsement to the Non-liturgical Church of the Nazarene before entering active duty in September 1991. He was stationed on Okinawa from 1991 to 1993. There his Liturgical Protestant rating chaplain, CH Ha, gave him a poor fitness report after CH Belt failed to support CH Ha’s prayer breakfasts by selling tickets. This same Liturgical Protestant chaplain later berated CH Belt for preaching that “men who call themselves Christians should live as Christians” and gave CH Belt a low mark on his fitness report. CH Belt and another Non-liturgical chaplain later reformatted a Protestant service in San Diego with low attendance and the congregation grew from 40 to approximately 130. His rating Liturgical Protestant chaplain recognized CH Belt’s accomplishment by calling his style of worship “hogwash.” The Liturgical Protestant then took over the service, changed it back to a Liturgical service and drove the congregation away, killing the service.
At his duty station at the Balboa Navy Medical Center in San Diego, he witnessed and experienced Liturgical bias, prejudice and retaliation against himself and other Non-liturgical chaplains from his RC command chaplain, CAPT Dave Young and the CHC. This included exclusion exclusively Liturgical chaplain meetings that made decisions that affected him and other Non-liturgical chaplains and seeing Catholic and Liturgical Protestant chaplains, whose
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work output was below their peers, nonetheless being given higher fitness reports. Plaintiff LCDR Roysden was stationed at Balboa with CH Belt. He testified at his 2004
CFGC/Adair deposition: CH Young “hated Michael Belt with a passion” although CH Belt “was willing to do
whatever he could to make an impact in the hospital. He never seemed to tire, he loved being with patients and with staff.” [241:15-22]. CH belt and CH Smith developed a project providing ministry to the operating rooms; at first, CH Young opposed it and didn’t want them to be doing it. After it got off the ground and was termed a success, CH Young tried to claim credit for it, saying it would never have happened had he not suggested to those two chaplains that they go do it. [241:23-242:22].
As a result of his superior chaplains’ retaliation and denominational prejudice, CH Belt was non-selected for promotion to the grade of Lieutenant Commander (“LCDR”) by the fiscal year (“FY”) 1999 and 2000 chaplain promotion boards.
CH Belt joined the Adair litigation in 2000 at the rank of Lieutenant. As result of interest in the litigation by other chaplains in the San Diego area, CH Belt organized a briefing session on the Adair litigation for San Diego area chaplains with the approval of his supervising chaplain, CAPT Lineback. Other senior chaplains in the Medical Command and the Office of the Chief of Chaplains became very hostile, forcing CH Belt to find another location at the last minute. That hostility became manifest later.
CH Belt became an invalid when Navy medical malpractice complicated and compounded the injuries he received on active duty; he could walk only with great difficulty and pain. The Navy started the process for a medical board to evaluate CH Belt for medical retirement. However, due to the Navy’s delay and broken promises, CH Belt was separated for
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FOS in March 2006 due to the low Fitness reports, the product of the retaliation described above, despite the Navy’s failure to complete the medical evaluation board. The Adair court rejected his attempt to obtain a TRO (Temporary Retaining Order) and allow the board process to be completed. His separation in an invalid state inflicted great distress and hardship on CH Belt and his family.
The CHC’s hostility and opposition to allowing CH Belt to complete the medical evaluations necessary for him to complete a medical board and qualify for a medical retirement is a manifestation of the CHC’s retaliation against CH Belt for challenging the CHC’s denominational preferences, bias, and hostility to evangelical chaplains like himself. His injuries include the obvious messages of second class citizenship, denial of his rights and intense emotional stress on him and his family. CH Belt now resides at 17722 North 79th Ave. Glendale, AZ 85303. c. WILLIAM C. BLAIR (Adair) resides at 2658 Widdy Bostwick Ln., Jamestown, NY 14701. Before attending seminary, he had prior enlisted service in the U.S. Marine Corps from September 1972 to August 1976. He became a Navy chaplain in July 1983 endorsed by the Nonliturgical Assemblies of God faith group and was recalled to active duty in September 1983, promoted to Lieutenant Commander and selected for post graduate school.
As a Non-liturgical chaplain, he was required to be able to officiate at Liturgical Protestant services, but Liturgical Protestant chaplains were not required to know how to or to officiate at Non-liturgical services.
The Navy assigned him to Naples, Italy, after completing post-graduate school. Navy regulations required he fill a chapel education billet that matched his specialty code awarded after completing Post-graduate school. CH Blair’s Liturgical command chaplain refused to assign him
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that “P” coded billet and transferred him to a NATO organization and chapel in Naples. Finding there was no service for Pentecostal/charismatic military members in Naples, he initiated a “Full Gospel” worship service around 1992 despite great hostility from senior chaplains and lack of chapel support. His service became the largest on-base non-Catholic service. While the poorly attended liturgical General Protestant service received full support and funding, his well attended service had to improvise just to survive, including using a borrowed personal stereo amplifier to run the service’s sound system.
The FY 97 CHC Commander selection board did not select CH Blair despite an outstanding record superior to many of those selected for promotion as shown by CAPT Stafford’s investigation of the FY 97 and 98 CDR promotion boards (the “97&98 Boards) in response to LCDR Aufderheide’s complaint of religious discrimination.
When CH Blair attempted to learn the cause of his non-selection, a senior CHC official told him his one rating (in 16 years of service) of 3 of 3 was the only indication in his record. He appealed that rating and his non-selection to the Board of Correction of Naval Records which in effect informed him that there was nothing wrong with the board and that he had no basis for a complaint. His subsequent requests for an explanation were met with a “we can’t talk about the board - it’s a secret.”
Following his second non-selection, the CHC told CH Blair to “either retire or be retired.” In the face of the Navy’s threat and prejudice, he retired on September 1, 1999. The result of the Navy’s prejudice, misconduct, and retaliation constitute a constructive discharge.
Examination of the Stafford Report’s information after his retirement showed CH Blair’s record was superior to many chaplains promoted; some had in their records the very things CHC senior officials had consistently said would keep a chaplain from being promoted, e.g., DUI.
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The DODIG’s follow on investigation of the 97&98 Boards found evidence of denominational preferences on both boards. It concluded a Catholic board member had retaliated against Protestant LCDR Aufderheide through negative comments resulting in Aufderheide’s non-selection. Aufderheide alleged he had confronted RC CAPT Madden about his drinking and womanizing years before and Madden promised he would deny Aufderheide promotion.
The resulting Chaplaincy litigation exposed the Navy’s blackball voting procedure that allowed one board member to anonymously destroy another chaplain’s career. CH Blair had previously served with one of the FY 97 liturgical board members, CAPT G. Cooper, with whom he had experienced hostility over disagreements. Given CH Blair’s record compared with others selected, he alleges he was the victim of that board member’s retaliation, not unlike LCDR Aufderheide; or prejudice because of his Pentecostal background; and/or because the denominational preferences exhibited by the board necessarily discriminated against him and denied him a fair opportunity for promotion by illegally introducing religion and denomination into the promotion process.
d. RICK P. BRADLEY (Gibson) currently resides at 2580 Grummer Lane, Conway, Arkansas. He was endorsed by the Southern Baptist Convention, commissioned and entered active duty as a chaplain in December 1997. Following Chaplain School and training at Camp Lejeune, he was sent to Guam for his first assignment to the sub tender USS FRANK CABLE, AS40. He left Guam in December 1999 and transferred to Paris Island for the period January 2000 to September 2003, when he was reassigned to Marine Air Group at Beaufort, SC. As a result of a physical in his pre-deployment procedures, he was discovered to have an unknown blood disease. This led to a two-year period of multiple visits to Walter Reed Army Medical Center, Bethesda Naval Medical Center, and Johns Hopkins University, which finally determined
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the cause of his medical manifestations was a reaction to anthrax. This made him ineligible for deployment and resulted in a medical board which subsequently discharged him. However, during the time when he was being evaluated, he went before a promotion board in March of 2002 for FY03, for which he FOS to LCDR despite outstanding fitness reports.
Prior to his revisiting Walter Reed, he worked with the Deputy Command Chaplain to ensure his file that appeared before the board was complete. However, when he reviewed his Officer Personal Data Sheet after the board, he found it had been substantially altered with blanks and other incorrect information, so much so that it did not accurately reflect in any meaningful way his history, education or other information relied upon by the board. There is no explanation as to how this information became corrupted. CH Bradley attempted to resolve this, but his command chaplain told him he needed to talk to the Chief of Chaplains office. That office told him he needed to work with his command chaplain. Before this could be resolved, CH Bradley was medically discharged. During his time on active duty, he was reprimanded by his senior chaplain for praying in Jesus’ name at a graduation while assigned to Paris Island, although it is a practice consistent with his faith group’s beliefs and practices.
CH Bradley’s FOS to LCDR is believed to be the result of prejudice against him for his consistent, effective performance and insistence on following the dictates of his conscience, which included praying in the name of Jesus as authorized by his faith group despite criticism.
e. ANDREW CALHOUN (Gibson) currently resides at 3269 East Bonnie Drive, Oak Creek, Wisconsin. He began his career as a Navy chaplain commissioned as an Ensign in 1984 in the Theological Student Program and endorsed by the Church of God in Christ, a Nonliturgical denomination. He was subsequently given a superceding appointment to the CHC in 1988, came on active duty in 1990 and was assigned to the Naval Training Center, Great Lakes,
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Illinois. He was then assigned to the USS BAINBRIDGE. Because of his involvement with a community service program, his ship was recognized as having the most outstanding community service programs. In fact, the name of the Navy award given to ships for community service is now known as the USS BAINBRIDGE Award, a recognition of the contributions CH Calhoun made to both the Navy and his ship.
His subsequent assignments included a tour at the Milwaukee, Wisconsin Coast Guard Station followed by postgraduate school, where he obtained a Masters of Theology degree, a reassignment to Okinawa for a one year unaccompanied tour, and then to Little Creek, VA. He was promoted to LCDR in 1994.
Two weeks prior to the FY2001 CDR board, CH Calhoun received a revised fitness report delivered to him by FedEx which substantially reduced his final fitness report for the period he was at the Milwaukee Coast Guard Station. This report was written outside the window in which corrections were authorized to be made and he received no warning or opportunity to rebut it, nor an explanation of the basis for the change. He came to believe this report was instigated by RADM Iasiello since a letter accompanying the report indicated it had the approval of RADM Iasiello, who also served as the president of the promotion board before which the report was submitted. The apparent unfairness of the later report reduced, if not destroyed his chances for promotion. RADM Iasiello should have recused himself from consideration as board president given his involvement in the approval of the revised report, and subsequent difficulty in attempting to resolve the question. That and RADM Iasiello’s apparent complicity in a retaliation scheme convinced CH Calhoun the Navy had become hostile to him, there was no place for him in the Navy CHC, and he submitted his resignation.
The CHC’s animosity against him is further exemplified in its rejection of CH Calhoun’s 27

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request for release from the Navy in the early summer of 2001 to pursue civilian employment opportunities and minimize the impact of transition on his family. The Navy would not release him until February of 2002. The Navy’s treatment of CH Calhoun is typical of the second class treatment afforded many Non-liturgicals and reflects a determined effort to insure that gifted and qualified Non-liturgicals are retaliated against because of their faith and removed from the service.
RADM Iasiello’s and the CHC’s retaliation and hostility denied CH Calhoun promotion to CDR, created a hostile environment, and resulted in a constructive discharge.
f. MARTHA CARSON (CFGC) was commissioned in the United States Marine Corps in 1980 and served as a Marine until 1987 when she left active duty to obtain a Masters of Divinity Degree at Duke University, Durham NC. Beginning the process to become a Navy Chaplain under the endorsement of the United Methodist Church, she switched to CFGC’s endorsement before reporting for active duty. The Navy’s and CHC’s actions suggest Navy discrimination against her based on her identification as a CFGC endorsed chaplain. This discrimination took various forms, including: (a) unreasonable delay and changes in bringing her to active duty after she had changed her endorsement to CFGC and had quit her job based on a specific reporting date and ship assignment (USS Simon Lake) the CHC had previously given her; (b) denying her a fair opportunity for promotion by turning her prior outstanding military service into a detriment and liability and giving her assignments that made her non-competitive for promotion; (c) causing economic and other injury by unreasonably delaying her discharge orders and interfering with her opportunity to seek commissioning in the Army Chaplain Corps. She left the Navy after her failure of selection (FOS) of promotion to the grade of Lieutenant Commander (“LCDR”), was commissioned as an Army chaplain, promoted to Major (the Army
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equivalent of LCDR), and retired April 2008 after completing 20 years commissioned service. She lives at 7148 State Route 329, Guysville, OH 45735.
CH Carson’s injuries include being treated as a second class citizen because of her faith, denied a fair opportunity to compete for promotions in the Navy, denial of promotion in the Navy, delaying her promotion to Officer pay grade 4 (“O-4")7 (Major) because she had to essentially start her career over again in the Army, subsequent denial of promotion to O-5, and the financial delay in bringing her to and releasing her from active duty as mentioned above.
g. CH (CDR) TIMOTHY DEMY (Gibson) resides at 7 Ellen Road, Middletown, Rhode Island. He was endorsed by the Bible Churches Chaplaincy, commissioned in the CHC in 1981 and came on active duty in July 1984. He was promoted to LCDR in 1988 and CDR in 1993.
CH Demy was the honor grad for the Chaplain Advanced Course and was assigned to the Chief of Chaplains Office in the summer of 1990 where he worked in the detailing office first as admin officer and then as the junior detailer. CH Demy has testified denominational considerations color or influence all detailer’s office decisions and many of the CHC’s critical personnel decisions. CDR Demy Declaration (Exhibit 9) ¶¶ 11, 29 (“as in all other matters chaplains in the Chief’s office and detailing, denominational awareness was always part of the deliberations of that process”) (emphasis in original), 40. He stated “if released from my oath of secrecy about [selection board] proceedings, I would have relevant and material information concerning the impact of denomination on the SERB selections.” Id. at ¶ 44.
7 Military services often identify rank with its equivalent paygrade, e.g., O-4, MAJ or LCDR. The “O” stands for “Officer” and the number equates to the grade above entry level, here 4.
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CH Demy was assigned to the Naval Chaplain School as the supervisory course officer
after a tour with the Coast Guard Headquarters, followed by attendance at the Naval War College
from March 1998 to 99. He was the first chaplain designated the honor graduate and was
subsequently assigned to teach at the Naval War College.
CH Demy FOS to CAPT. He was told this was due to “lack of operational time.”
However, his fitness reports all show top 1%, he worked for two Chiefs of Chaplains, and he was
specifically requested to go to the Chaplain School and the Naval War College. Any lack of
“operational” time was not due to a failure on his part, but a result of the system which assigned
him to these important positions based on his demonstrated abilities and skills.
Evidence suggests the real reason for CH Demy’s FOS was retaliation by the CHC and
RADM Black, reflecting hostility against his non-denominational beliefs and professional
jealousy over his recognized skills and abilities.
45. I was told by a reliable source shortly after one of my failures to be selected by the CAPT board on which the Chief of Chaplains, RADM Barry Black was President, either 2002 or 2003, that during the board break, i.e., not during the actual board deliberations, that RADM Black made a comment to [another board member] regarding my record: “I know what you are trying to do Norm. Demy is a good commander and the Navy needs good commanders. If we pass him over, he can sit in his office and write his books.” 46. This was reference to the fact that on my own time I have published extensively on religious issues. RADM Black’s comment falsely implied that I had used government time and resources to write books which was a false and prejudicial remark. It was also an irrelevant reference to a personal and private activity. It would be the same as if he had said, “this way he can play more golf”, something I do not play, or “coach Little League soccer.” After hours legal activities should not be a part of board considerations or discussions, formal or informal. The question for each board member is does my record as a CDR (which RADM Black indicated was good) indicate I have the potential to perform satisfactorily the duties at the CAPT level. The statement itself reflects personal prejudice or jealousy because of my professional accomplishments. 47. After my first FOS, I requested a special board due to incorrect data on a fitness report regarding my weight and a physical fitness test that had been administratively corrected. My request for a special board was denied.
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CH Demy was selected for involuntarily retirement by the FY08 Commander Selective Early Retirement (“SER”) Board and retired in June 2008. The retaliation and hostility documented here injured CH Demy by denying him promotion to CAPT, facilitating his selection for SER, and conveying a message of second-class citizenship based on his faith and both military and ministry skills.
h. JOSEPH DUFOUR (Gibson) resides at 1755 Campbell Rd, Waxahachie, TX 75167-8036. He entered active duty September 21, 1992, endorsed by the Bible Churches Chaplaincy, a Non-liturgical faith group. CH Dufour had a successful and productive career prior to his assignment to the Naval Support Activity at Naples, Italy (Naples) as evidenced by his fitness reports and his promotion to LCDR. He is one of several named plaintiffs who have been victimized by the Navy's oppressive culture of prejudice against Non-liturgical chaplains and faith groups that became a pattern and practice of bias at Naples, orchestrated by its RC command chaplains. For example, no evangelical chaplain who has served under his Catholic command chaplain at Naples, CH (CAPT) Rock, has ever been subsequently promoted on active duty. This systematic prejudice at Naples has resulted in a consistent pattern of threats, harassment, and professional and personal attacks resulting in biased fitness reports designed to destroy his opportunities for promotion and a Navy career.
CH Dufour challenged CH Rock over his prejudice and bias toward the Non-liturgical chaplains, congregations and their programs at Naples. In retaliation, on information and belief, CH Rock contacted CH Dufour’s Catholic command chaplain on the NIMITZ, a Boston priest like CH Rock. His new command chaplain undermined CH Dufour’s ministry and career and ensured CH Dufour’s FOS to CDR. CH Dufour retired after successive FOS.
i. ALAN GARNER (Gibson) resides at 9844 Rosemont Ave. Lone Tree, Co. 80124. 31

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He was a Chaplain Candidate Officer from January 1989 to April 1992 when he entered active duty as a Navy chaplain. He is an ordained Independent Baptist minister and endorsed by the Bible Churches Chaplaincy.
After an initial assignment aboard the guided missile cruiser USS LEAHY, CH Garner was assigned to the Naval Medical Center San Diego, CA. There LT Garner covered more hospital wards than any other chaplain on staff, facilitated two support groups, and helped train hospital staff in patient pastoral care. He was handpicked to deploy with a Navy Fleet Hospital for six months as part of the United Nations Protection Forces. He served as Division Officer over nine enlisted Religious Program Specialists (“RPs”) and successfully prepared his department for a major inspection. CH Garner was recognized for his excellent performance with outstanding fitness reports until the new Catholic command chaplain, CH (CAPT) David Young, reported to the Medical Center six months before LT Garner was scheduled to leave. In CH Garner’s final Medical Center fitness report, CAPT Young deliberately ignored LT Garner’s outstanding performance and accomplishments, downgraded him in the areas of professional expertise and teamwork, and placed LT Garner in the “must promote” category, a significant reduction from his previous rating of “early promote.” CH Young never offered any explanation for the poor marks or the lower promotion recommendation. Compared with his previous outstanding fitness reports, CH Young’s evaluation cast CH Garner’s performance in a bad light.
At the same time CH Young downgraded CH Garner’s performance, the Medical Center recommended CH Garner be given the Navy Commendation Medal for his outstanding performance in actions that occurred during the same time frame in which CAPT Young found CH Garner’s performance deficient. While CH Young was savaging CH Garner’s career, the Medical Center was thanking and rewarding him for the same performance of duty. CH Young’s
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evaluations resulted in CH Garner’s FOS to LCDR, a fact acknowledged by the Bureau of Personnel (“LT Garner’s fitness reports for the period 1 February 1996 to 20 July 1996 display a negative trend in performance and severely impacted the competitiveness of his record.”). CH Garner was forced to leave active duty, but was subsequently promoted to LCDR in the Naval Reserve and served in Iraq when his reserve unit was activated. He retired in the Naval Reserve in January 2009.
CAPT Young was the subject of several investigations, including findings of retaliation against other evangelical chaplains, racial discrimination against the department’s secretary, and sexual harassment from a junior female chaplain. Evidence in Chaplaincy demonstrates he favored Catholic chaplains in his ratings while trashing the careers of dedicated and productive Non-liturgical chaplains.
j. JOHN GORDY (Gibson) lives at 516 Sage Rd. North, White House, TN. He began his military career as an enlisted man in the U.S. Marine Corps from January 1978 to December 1981. He then attended college and seminary and was commissioned as an Ensign in the CHC in 1987 as a Chaplain Candidate. He entered active duty in August 1988, endorsed by the Church of God, Cleveland, Tennessee. He compiled an excellent record and was promoted to LCDR in September 1998. He was selected for and successfully completed postgraduate school where he wrote a paper addressing how to heal fractured congregations. That article resulted in his selection for assignment to NSA Naples, where disagreements between the Catholic command chaplain, CAPT Ronald Buchmiller, and junior Protestant evangelical chaplains had fractured the community and resulted in media coverage critical of the Navy and the CHC.
On arrival at Naples, CH Buckmiller told CH Gordy, “You know I have a reputation for ruining evangelical careers.” CH Buchmiller is the same command chaplain who ended the
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careers of several other Non-liturgical chaplains assigned to Naples. CH Buchmiller then proceeded to rate CH Gordy in a manner that ruined his career, guaranteeing CH Gordy would be FOS to CDR. CH Gordy’s failure to be selected despite his outstanding performance, as indicated by his record prior to Naples, his promotion to LCDR and selection for postgraduate school, is due to the CHC’s tolerance of known career killers like CH Buchmiller whose history indicated he retaliated against chaplains because of their faith and ethnic background, see LCDR Torralva below.
At his 2003 deposition in Naples, Italy, CH Gordy testified that when he first heard of the Adair and CFGC lawsuits and allegations about denominational prejudice, he dismissed their claims. However, his assignment at Naples changed his view after he was confronted by CAPT Buchmiller’s anti-evangelical prejudice and hostility, and the CHC’s and Navy’s willingness to condone his retaliation, prejudice and hostility rather than address it decisively.
RC CH Rock, Buckmiller’s successor, was also prejudiced and exhibited open hostility to CH Gordy and retaliated against him because of his faith and Pentecostal practices. CH Gordy retired due to his FOS. He was injured by RC Chaplains Rock and Buckmiller who destroyed his career and continually conveyed a message of second-class citizenship because of his fulfillment of his duties as a representative of a Pentecostal, Non-liturgical faith.
CH Gordy has served as a recorder on CHC promotion boards and testified if released from his oath of secrecy he has evidence highly relevant to the issue of denominational neutrality in promotion board proceedings.
k. FURNISS HARKNESS (Adair) is a Non-liturgical Navy Reserve chaplain residing at 400 Green Acres, Memphis, TN 38117. He entered active duty in March 1987 under the endorsement of the Non-liturgical Christian Church (Disciples of Christ). Although he had
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outstanding fitness reports, he found the Navy had two systems, one for Liturgical chaplains and one for Non-liturgical chaplains. After unsuccessfully attempting to obtain the same information concerning assignments after graduate school routinely provided to Liturgical chaplains, he realized his efforts to obtain equal treatment by filing an Inspector General complaint had effectively ended his Navy active duty career
He left active duty in June 1995 and attempted to return to his Reserve status. In an illegal act of retaliation, the Navy CHC issued a new instruction requiring the CHC’s approval of his Reserve affiliation in an illegal attempt to deny it. CH Harkness asked the Navy Inspector General (NIG) to investigate the legality of that attempt. The NIG subsequently found the CHC’s actions and its “new policy” to be without authority, vindicating CH Harkness’s position. The report admonished several senior chaplains for retaliation. The CHC’s retaliation and discrimination, based on religious prejudice and hostility to CH Harkness for challenging denominational preferences and the CHC’s open preference for Liturgical chaplains, precluded CH Harkness from drilling for a year and a half.
As an further act of retaliation, the Navy failed to select CH Harkness to the grade of Commander in mid-2000, despite his outstanding record and his graduation from the Naval War College. One of the board members on his selection board was implicated in his prior successful NIG retaliation complaint and demonstrated open hostility to Harkness. The obvious reasons for his non-selection was his prior successful complaint to the NIG concerning the CHC’s illegal attempt to deny him Reserve affiliation, his participation in Adair, and his attempts to obtain equality of treatment. These retaliatory acts illegally delayed CH Harkness consideration for CAPT.
The record also demonstrates numerous other subsequent acts of retaliation against CH 35

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Harkness by the CHC and its senior chaplains for challenging their “old boys” network and its preference for Liturgical chaplains and practices.
l. TOM KLAPPERT (Gibson) resides at 7699 Kuhn Road, Greencastle, PA. He graduated from the Naval Academy in 1973. He served five years in the Marines, rising to the rank of Captain (O-3), and remained in the Reserves from 1978 to 1982 while he attended seminary. He was endorsed by the Bible Churches Chaplaincy, commissioned as a chaplain LTJG in September 1982, and promoted to LT in 1983, LCDR in 1991 and CDR in 1998.
CH Klappert was assigned to Marine Corps Headquarters, Quantico, Virginia, from June 1992 to June 1995. CH Klappert became a central figure in the investigation of the Quantico command chaplain for serious misconduct resulting in the command chaplain’s relief for cause. CH Klappert also became embroiled in a conflict between the Liturgical senior chaplains and the Non-liturgical junior chaplains who were doing most of the ministry. General Krulak, Quantico’s Commander and the USMC Deputy Commandant, placed Non-liturgical chaplains in leadership positions and supported the evangelical ministry and services which found great support in the military community. This caused resentment among the senior Liturgical chaplains at Quantico as well as others in the CHC leadership, who resented the fact the liturgical command chaplain was caught and disciplined and Non-liturgical chaplains placed in leadership positions. See Declaration of LCDR Gary Heinke, Exhibit 10.
After Quantico, CH Klappert was assigned to the Portsmouth Naval Yard. There he experienced great difficulty with a female organist-music director who caused division in the congregation and other difficulties. CH Klappert finally determined to terminate her employment because of the division she was causing in the chapel. Shortly prior to his scheduled rotation date from Portsmouth and before he was able to terminate the organist’s employment, she filed a
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complaint alleging discrimination and harassment against CH Klappert. She initially obtained an ex parte protective order limiting CH Klappert from contact with her but the judge vacated that order at a subsequent hearing, finding there was no substance in the complainant’s allegations and “this is not sexual harassment.”
The Navy began an investigation despite the judge’s finding. CH Klappert submitted 16 witnesses’ names who would verify the falsity of the allegations, but the resulting investigation only interviewed 6, and perverted the testimony of those who had made statements so the meaning was entirely opposite to the witnesses’ testimony.
The base commander initially supported CH Klappert and expressed his confidence the investigation would refute the false allegations, but it became apparent to CH Klappert that his commander had been told supporting CH Klappert was not in the base commander’s career interests. It became obvious to CH Klappert this situation was retaliation for his involvement in the relief of the Quantico command chaplain, his support of Non-liturgical ministry at Quantico, his career was over, he was not welcome in the CHC, and he was a target because of his previous success. Faced with an expensive and protracted fight should he choose to legally dispute the charges, he submitted his resignation. His discharge was involuntary because it was motivated by retaliation, premised on coercion, and supported by official hostility and a corrupt investigation.
CH Klappert has also served as a recorder on CHC promotion boards. He has testified that if granted relief from his oath of secrecy, he has evidence highly relevant to the question of denominational neutrality on boards and the evidence he would present based on his experience would “set your hair on fire”.
m. ALLEN L. LANCASTER (Gibson) resides at 172 North Liberty Spring Rd., Suffolk, VA 23434. His case represents a prime example of the Navy’s unconstitutional
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retaliation, hostility and prejudice toward its Non-liturgical chaplains. His allegations here are supported by his Chaplaincy deposition.
CH Lancaster began his naval career in 1957 as an active duty enlisted sailor, serving until 1961 and thereafter in the Naval Reserve until August 1980 (23 years) when he was commissioned as a Navy Chaplain. Endorsed by the Associated Gospel Churches, an evangelical, Non-liturgical faith group, he then spent 21 years as a Navy Chaplain.
His record is truly outstanding career, every fitness report showing grades of “A” for all performance categories and “early promotion” recommendations. He was promoted to LCDR.
Just prior to his first time in the primary zone for selection to CDR, CH Lancaster was selected to attend the Chaplain Advanced Course on the basis of his stellar record, a course normally available only for CDRs or those selected to be CDRs. He was not selected for promotion to CDR in 1991. Because of his strong record, CH Lancaster was assigned to a high visibility position as chaplain on the USS SAIPAN and was selected for promotion to CDR his second time in zone.
Knowing he would be in the zone for CAPT in 1996, CH Lancaster reviewed his official file and found it was missing an outstanding fitness report dated July 1995 from another high visibility position. His rating officer sent a certified true copy of the missing July 1995 report to the Chief of Naval Personal on June 19, 1996. When CH Lancaster again reviewed his official file microfiche to make sure his record was complete, his July 95 fitness report was still missing. In February 1997, CH Lancaster again sent a copy of the July 95 report to the Navy CHC detailer for inclusion in his file. Following his fourth attempt to ensure his file was complete before the Chaplain CAPT selection board met, the detailer’s office told CH Lancaster his missing report was in his records. CH Lancaster was not selected for CAPT and then discovered his July 95
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fitness report was still missing, despite his four attempts to provide the missing report and the detailer’s assurance the record was complete.
Whether the board actually reviewed CH Lancaster’s record is in question. The promotion board’s senior recorder’s duty is to notify a chaplain’s command if a record before the promotion board is incomplete. After the board, CH Lancaster asked the CAPT selection board’s senior recorder if his record was complete. CH Epperson replied all the records were complete but a review of his record showed the July 95 report was still missing. CH Lancaster’s unit reported it had received no communication from the CHC indicating his record was not complete during the time the promotion board met. Several weeks later, he contacted board member CAPT (later RADM) Barry Black who said, “I do not recall anyone not considered due to a missing report.” How could the board have reviewed CH Lancaster’s record if all the records before the board were complete, none were reported missing, yet his record was missing an important fitrep?
En route to his new assignment to Camp Lejeune, NC in November 1997 CH Lancaster stopped in Washington D.C. to again attempt to complete his record. He was introduced to LCDR Burdec, Naval Personnel Officer Records Section, who took the report and said, “I will personally ensure that it gets in your file.” However, when the next Chaplain CAPT board convened in May 1998, it notified CH Lancaster’s unit his official record still lacked the July 1995 fitness report. Deployed with the Marines at the Twenty-Nine Palms, CA, Training Center, CH Lancaster called Camp Lejeune. CH (CDR) Cash forwarded the missing report to the board by fax (January 1997). The July 95 report still did not reach his official record, a fact the BCNR noted in denying CH Lancaster’s subsequent request for a new promotion board. The Navy retired CH Lancaster as a CDR October 31, 2001 after 44 years of Naval service.
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Overt and deliberate retaliation against CH Lancaster, symbolic of the prejudice against Non-liturgical Chaplains and their faith groups, is the only explanation for the consistent failure of seven documented attempts to get an important, exceptional fitness report into CH Lancaster’s record. CH Lancaster’s saga demonstrates a pattern and practice of retaliation and sabotage against outstanding Non-liturgical chaplains so liturgically dominated Chaplain boards had an excuse for denying Non-liturgical chaplains a fair opportunity for promotion, thereby maintaining Liturgical domination of the CHC. CDR Demy’s declaration, ¶ 35, provides further evidence the ease in which important documents can be removed from chaplains’ files on the order of senior chaplains.
n. MICHALE LAVELLE (Adair) resides at 13921 East Poelstra Street, Vail, AZ 85641. Despite an outstanding career as a Non-liturgical Navy chaplain including participation in Operation Desert Storm and a preponderance of duty with the Marines, he was passed over for Commander in FY 1998. That required him to face the reality that few, if any, chaplains are subsequently selected once they have been non-selected, Liturgical chaplains seemed to dominate the boards, and a former liturgical supervisor who tried to sabotage and destroy his ministry in Desert Shield/Storm claimed credit for CH Lavelle’s FOS, see below, implying CH Lavelle had an overt enemy with connections to senior chaplains and/or board members. CH Lavelle applied for early retirement under the Temporary Early Retirement Act (TERA) to avoid further humiliation, prejudice and the possible financial injury he and his family might suffer if he continued to remain on active duty. He retired on October 1, 1998, and claims he was constructively discharged as a result of his retaliatory and illegal FOS which created a hostile environment and threatened his family, career, and retirement.
Before and during Desert Shield/Storm, then liturgical chaplain LCDR Richard Pusateri 40

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was assigned as CH Lavelle’s supervisory chaplain with Marine Air Group-13 and CH Lavelle deployed with 2nd LAAM BN (as they had no chaplain and the whole BN had orders to deploy). CH Pusateri covertly attempted to destroy CH Lavelle’s ministry, reputation and standing in his battalion by spreading falsehoods, innuendo and lies masquerading as rumors. Since CH Lavelle was new to the unit, he had no history to fall back upon to refute these rumors. CH Pusateri has a history of destroying evangelical careers using that same pattern and practice. CH Lavelle exposed CH Pusateri’s efforts and was successful in transferring to another unit (from MAG-13 to MAG-16), as directed by the senior 3rd Marine Air Wing chaplain, who was the direct superior of Chaplain Pusateri and who removed CH Lavelle from CH Pusateri’s reach. Even tainted with a transfer at a most unfortunate time (in the middle of a military conflict), CH Lavelle was able to obtain an outstanding fitness report indicative of his ability and skills.
Years later (1994-95) and right before the selection board, while stationed at 3rd Light Armored BN, the senior supervisory chaplain (who was friends with and came from Pusateri’s faith group) informed CH Lavelle that CH Pusateri claimed to have the ability to make sure that CH Lavelle would FOS to CDR. CH Lavelle had an outstanding reputation at this duty station and was well respected by this supervisory chaplain. This story indicates that CH Pusateri had contacted someone on the CDR promotion board who zeroed out CH Lavelle in retaliation on CH Pusateri’s behalf. In fact, one of the board members shared a domination with CH Pusateri.
The DODIG investigation of the FY 97-98 CHC CDR produced evidence the board had illegally used faith group as a promotion criterium and promoted Liturgical chaplains with records inferior to those not selected, including CH Lavelle. The Navy’s failure to address its chaplain promotion system allowing one chaplain board member to anonymously destroy a chaplain’s career with no accountability and its other legal problem provided a well-known
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avenue of illegal retaliation and denominational preference. The Navy’s faith group prejudice and the realities of the Navy’s promotion and separation policies constitute a constructive discharge.
o. GEORGE W. LINZEY (Adair) resides at 1111 Seacoast Drive #61, Imperial Beach, CA 91932. He was endorsed by the non-denominational National Association of Evangelicals, commissioned as a chaplain in the Naval Reserve in April 1975 and entered active duty as a Navy chaplain on September 6, 1975. CH Linzey was the youngest chaplain to make Captain but the FY 1998 SERB selected him for involuntary early retirement despite his outstanding record.
In the spring of 1997, RADM Koeneman, a former Chief of Chaplains, made a special trip to visit CH Linzey at Great Lakes Naval Training Center (the “Center”) where CH Linzey was the Command Chaplain. RADM Koeneman told CH Linzey to “get your resume ready”, it was time for him to return to civilian life, and gave him the name and contacts of a church looking for a music minister. CH Linzey was selected for SER in January 1998 as predicted.
RADM Koeneman’s warning and advice is evidence CH Linzey was personally preselected by the Chief rather than by an unbiased SER board based on an objective records review. CH Linzey’s father was the first Navy Assembly of God chaplain to be promoted to CAPT. He warned George about the CHC’s bias against Non-liturgicals and told him he would have to work harder than the other chaplains. His success aroused jealousy amongst other senior chaplains.
CH Linzey attempted to correct the CHC’s Non-liturgical bias when he encountered it and change the CHC’s culture. As the Center’s Command Chaplain, CH Linzey exposed and helped correct an injustice to a CFGC endorsed chaplain, LT Patrick Sturm. LT Sturm’s former supervisory chaplain torpedoed CH Sturm’s career with a mediocre/poor fitness report through the use of code-words while telling CH Sturm the report was a good one and the code-words
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were good for him. CH Linzey helped LT Sturm expose the former command chaplain’s duplicity and the CHC’s hostility to Pentecostal and charismatic chaplains.8
CH Lindsay compounded his offense against the CHC’s Liturgical leadership by rating LT Sturm above an RC LT chaplain.
CH Linzey believes his preselection for early retirement retaliation was based on (1) his efforts to correct injustices against Non-liturgicals, e.g., LT Sturm, (2) his efforts to challenge and change the CHC’s “good old boys” liturgical network, and (3) denominational reasons, rather than an objective review of his record compared with other eligible chaplains.9 The president of his SER Board was the Chief, four of the five SER CAPT selectees were Nonliturgical.
p. JAMES LOOBY (Gibson) resides at 1713 County Rd. 318, Early, TX. He began his military career with the U.S. Air Force in June 1967 and served there until June 1971. He completed seminary in 1975 and entered the CHC in February 1984 endorsed by the SBC.
He served in a variety of assignments and was promoted to LCDR in April 1991 and subsequently to CDR by the FY96 promotion board but was not selected by the FY03 CAPT board. He subsequently learned a rumor was circulating among the CHC leadership that CDR Looby had been injured on active duty, was ineligible for promotion and had performance
8. The Navy and CHC’s treatment of LT Sturm in opposition to his efforts to correct his prejudicial, erroneous fitrep resulted in a 1999 lawsuit challenging his non-selection to LCDR.
9 The Navy kept Naval reservists on active duty who should have been separated in compliance with Secretary of Navy Instructions implementing Title 10's emphasis on maintaining an all Regular Navy. A 10/24/1994 CHC Community Manager memo warned the Chief SERs would be necessary to maintain the CHC’s “denominational balance” if certain steps were not taken, clearly an illegal motive for SER since selections, like promotions, must be based on merit, not denomination.
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problems. On information and belief, this view was shared by RADM Iasiello, the president of his first CAPT board, in retaliation against CH Looby. There is no other explanations for his FOS given his record except the board reliance on RADM Iasiello’s unfounded and malicious rumor contrary to his record or retaliation by being “zeroed out.” CH Looby retired in 2005, in effect a constructive discharge. Like all the other chaplain plaintiffs, CH Looby was injured by being denied promotion as a means of unjust retaliation and the message of second or third class citizenship communicated by the CHC’s and Navy’s twin messages of denominational preference and prejudice.
q. WALKER MARSH, JR. (Gibson) resides at 125 Whisperwood Blvd., Slidell, LA. He was endorsed by the SBC, commissioned as a Navy chaplain in October 1982, entered active duty in January 1984 and promoted to LCDR in November 1990.
In September 1985, he was assigned to the Naval Training Station, San Diego, CA. The Liturgical command chaplain, CH Dempsey, told CH Marsh in his initial interview: “I hope that you’re not planning on making this a career because you already have three strikes against you. You are the wrong sex, the wrong color and the wrong religion.” This was a prophetic utterance. CH Marsh began an alternative Non-liturgical worship service with two other Non-liturgical chaplains, LTs, Michael Lavelle and Robert Yourek after he arrived at the Naval Training Station. Despite being restricted by the command chaplain to an unreasonable time (7:00 am) and still being required to participate in the Liturgical General Protestant service, under CH Marsh’s leadership the Non-liturgical service soon grew to approximately 60 attendees. At this point, the command chaplain terminated the service.
CH Marsh was assigned to the U.S. Marine Corps School of Infantry, Camp Pendelton, CA after selection for and completion of postgraduate school. The base’s Liturgical command
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chaplain, CH Ha, established a chaplain meeting schedule and other procedures for the chaplains he “supervised” that created direct conflicts between his demands on their time and the time and priority requirements of the unit commanders to whom the chaplains were assigned and who rated them. CH Ha did not address the resulting conflict he had created with the unit commanders themselves but demanded his junior chaplains convince their commanders that he was the appropriate authority to determine the responsibilities and priorities for the battalion chaplains, rather than the battalion commanders. CH Marsh rightfully objected to this as a breach of discipline and custom.
CH Ha promised CH Marsh he would make sure CH Marsh would never be promoted. CH Ha made it clear to CH Marsh Liturgical chaplains controlled the chaplain promotion boards and used that control and its threat to chaplains’ careers to keep Non-liturgical chaplains in line. This control kept junior chaplains subservient to senior chaplains rather than their unit commanders to whom the junior chaplains were assigned and accountable for ministry. This is another example of the well known CHC’s truism, “the line may rate you, but the CHC promotes you.” The fact CH Marsh was FOS despite his outstanding record gave support to CH Ha’s claim he would destroy CH Marsh’s career in retaliation for obeying his commander’s instructions and meeting his unit’s ministry needs.
CH Marsh’s assignment to the USS BELLEAU WOOD after his first FOS to CDR exemplified the CHC’s retaliation, deceit and religious prejudice against CH Marsh. His detailer, a member of the board that had not selected CH Marsh for CDR, said CH Marsh needed an unaccompanied tour (i.e., no family) to better his chance for selection by the next promotion board because the BELLEAU WOOD assignment would be a supervisory position. When CH Marsh questioned the detailer about his first FOS and the fact that the next board results were not
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yet known, his detailer said, “Don’t you know you’ll get picked up?” When he reported to the ship, he discovered he was not assigned to a supervisory position.
After his second FOS while on the BELLEAU WOOD, the CHC told him the Navy would separate him under 10 U.S.C. § 632 and then gave him a series of changing return and separation dates that resulted in a two year involuntary, extended, unaccompanied tour. He spent two years separated from his family as a result of CHC deceit, religious hostility and retaliation for exercising his duty to represent his endorser and serve his commander. This is not the type of service or treatment given to Liturgical chaplains.10
r. DENISE Y. MERRITT (CFGC), endorsed by CFGC, entered active duty in the CHC in February 1990 with prior enlisted service in the U.S. Marine Corps. She was first stationed at Charleston, SC, then Quantico, VA, and finally the National Naval Medical Center in Bethesda, MD. The Navy subjected her to prejudice and retaliation because of her endorsement by CFGC.
CH Merritt’s Liturgical supervisor undermined all her ministry efforts at Quantico. For example, after scheduling an inter-service chapel concert with Army and Air Force bases in neighboring states, her command chaplain told her to cancel it at the last minute. Also during her time at Quantico, she became embroiled in a conflict between the Liturgical and Non-liturgical chaplains over the type and quality of ministry and turmoil surrounding the relief of the Liturgical command chaplain.
CH Merritt’s fitness reports at Bethesda cited shortcomings provided by her Liturgical
10 CH Dufour reports his RC command chaplain, CH Jerome Dillon, had been reassigned several times before his tour of duty was complete and assigned as command chaplain on several other ships in an apparent effort to boost his record and career.
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command chaplain, Jane Viera, for which CH Merritt had received no prior notice or counseling. Her efforts to correct or challenge the ratings were ignored or rebuffed. CH Merritt served on twelve hospital committees and performed eight collateral duties at Bethesda. This contrasted with a Catholic chaplain at the same rank who served on no committees and performed no collateral duties because he did not speak English well, yet CH Vieira rated the Catholic chaplain above CH Merritt. Evidence shows CH Jane Viera did not like Non-liturgicals and left a wake of ruined evangelical chaplain careers wherever she was assigned.
CH Merritt left the Navy in May 1998 after her FOS for LCDR and was commissioned as an Army chaplain assigned to Ft. Eustis, VA when CFGC filed its suit and joined as a plaintiff. She was promoted to Major as an Army chaplain and was selected for and completed postgraduate school. CH Merritt retired after completing 20 years of service but was offered and accepted the opportunity to return to active duty. She has retired for the second time and lives at 4405 Biway Cir., Fayetteville, NC 28311.
CH Merritt’s injuries include being denied a fair opportunity to compete for a full career and promotions in the Navy, denial of promotion to LCDR in the Navy and the opportunity to compete for other promotions, and delay in being promoted to O-4 in the Army because she had to essentially restart her military chaplain career. The CHC placed CH Merritt under abusive and hostile chaplain supervisors who retaliated against her on the basis of her faith and inflicted great stress and strain on her and her family.
CH Merritt was an assistant board recorder for the FY 96 CHC Commander promotion board. She testified she has relevant and material evidence addressing the influence and conduct of the Board President, denominational preferences, and other issues addressing denominational considerations discussed during the board if she is released from her oath of secrecy concerning
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the proceedings. s. DAVID MITCHELL (Gibson). Dr. Mitchell resides in Durham, NC. He was
endorsed by the Progressive National Baptist Convention, a Non-liturgical denomination, entered the Navy CHC in Sept. 1987 with 4 years prior service in the USAF. He had completed his work for his PhD and had held 3 supervisory billets in which he had received outstanding fitness reports when he entered the primary zone for promotion to CDR in 2001. He was not selected for CDR despite his outstanding record and career.
The president of the CDR promotion board was RADM Iasiello, then the director of the Chaplain School. He had supported a female chaplain candidate’s unsupported and false allegation that Dr. Mitchell had sexually harassed her during an interview required for the chaplain commissioning program. The subsequent investigation proved his innocence, but CAPT Iasiello (who later became Chief) indicated to Dr. Mitchell he believed the candidate’s allegations and would find a way to end Dr. Mitchell’s career. The 2001 CDR Board with RADM Iasiello as president, denied Dr. Mitchell’s promotion but selected two Catholic chaplains above zone who did not have records as strong as Dr. Mitchell’s.
Consideration of factors other than the record is improper, forbidden by the Secretary of Navy’s instructions, Equal Opportunity regulations and the Equal Protection component of the Fifth Amendment. Dr. Mitchell believes the Navy’s secret voting process and small boards allow one chaplain board member to prevent a candidate’s selection by voting “zero” with no accountability, presenting a dishonest briefing of the candidate’s record, and allowing comments not in the record during discussion. Dr. Mitchell believes this process allowed RADM Iasiello to retaliate against him by preventing his promotion and ending his career. Dr. Mitchell retired in 2003, after two FOS to CDR.
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t. JAIRO MORENO (Gibson) resides at 2009 Oak Brook Dr., Portland, TX. He entered the Navy Chaplain Corps in 1987 endorsed by the Church of God of Cleveland, Tennessee, a Pentecostal Non-liturgical denomination. CH Moreno is Hispanic, and the combination of being Pentecostal and Hispanic resulted in retaliation, bias and prejudice throughout his chaplain career.
He was assigned to work under CAPT Rock, the Catholic command chaplain, in Okinawa. CH Rock expressed his view CH Moreno should have been Catholic rather than Pentecostal because he was Hispanic and retaliated against him accordingly. CH Rock subjected CH Moreno to a series of degrading and insulting incidents and gave CH Moreno fitness reports that made him non-competitive for CDR. CH Moreno suffered numerous FOS to CDR. No Pentecostal chaplain who worked for CAPT Rock has been promoted.
The command chaplain who followed CH Rock was CH Lesak, another Catholic. On arrival, CH Lesak told CH Moreno, “I don’t want anything to do with you because you have been passed over” and treated CH Moreno with disrespect and disdain.
The command chaplain who followed CH Lesak gave CH Moreno increased responsibilities and outstanding fitness reports, although nothing had changed in CH Moreno’s approach to ministry. CH Moreno’s FOS was due in large part to the animosity of his former RC command chaplains, who savaged his career with prejudiced fitreps. This was aggravated by the policy of always having a RC on every promotion board until FY 2003. CH Moreno was considered for promotion to CDR during that time. CH Moreno is one of two plaintiff chaplains with Hispanic ethnicity. Non-liturgical Hispanic chaplains were not promoted while Catholic Hispanic chaplains were.
u. RENE PORTER-STEWART (Gibson). CH Porter-Stewart was an active duty 49

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Navy Chaplain assigned to the Naval Medical Center, San Diego, California, until she was discharged March 1, 2006, for multiple FOS to LCDR, She currently lives at 2028 Farmdale Lane, Spearfish, S.D. 57783.
CH Porter-Stewart entered active duty as a Navy chaplain in September 1988, endorsed by the International Church of the Foursquare Gospel, an evangelical, pentecostal, Non-liturgical faith group. CH Porter-Stewart’s career is filled with examples of the Navy’s overt and covert retaliation and hostility to effective, Non-liturgical chaplains, and retaliation for the exercise of her Pentecostal faith. During Operation Desert Shield and Desert Storm (Persian Gulf War), she established an airport ministry at Cherry Point, NC for all Marines leaving or coming home. She also developed and hosted several episodes of a television program for the Cherry Point, NC military community addressing such topics as reunion (when a service person returns after a deployment and combat) and suicide prevention. Despite these highly effective programs, she experienced hostility from her command chaplains who recommended she be given low marks on her fitness report. Her commander disregarded her command chaplain’s career harming recommendations, writing higher and more accurate fitness reports on her.
CH Porter-Stewart’s command chaplain reassigned her from her highly effective Headquarters Squadron ministry, placed in a closet for an office and gave her no job description, no budget, and no religious program support personnel. Several months later, after she defined her duties and began building an effective ministry, she was placed in a CDR’s position as a LT with no overlap or support. The senior Second Marine Air Wing Chaplain subjected her to hostility, inappropriate language and harassment.
She was assigned to Balboa Naval Hospital, aka the Naval Medical Center, San Diego, CA, in 1995-1997, and again faced great harassment, a hostile work environment and retaliation
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from the RC command chaplain, CAPT Dave Young. CH Porter-Stewart, another female (LT) chaplain, two male chaplains and the Command Chaplain’s civilian secretary filed complaints against CAPT Young.
The Navy placed CH Young on CH Porter-Stewart’s LCDR Chaplain Selection Board, which failed to select her. The Board of Corrections removed CH Young’s fitness reports on CH Porter-Stewart, but did not grant her a special board.
No active duty Non-liturgical chaplain who worked under CH Young was promoted. CH Young rated his Catholic chaplains above Protestant chaplains, both Liturgical and Nonliturgical, not on the basis of performance but because they were Catholic. See also claims of Belt, Garner, and Roysden who also suffered retaliation under CH Young.
v. RAFAEL J. QUILES (Adair). Rafael J. Quiles resides at 203 Orchard Grove Place, Oldsmar, FL 34677. CH Quiles had prior enlisted service in 1970-1972 and 1973-1977. He reentered the Navy as a chaplain in January 1984, endorsed by the Church of God, Cleveland, TN, a Pentecostal denomination. He reached the rank of LCDR. CH Quiles’ career and his exemplary record should have qualified him for promotion to Commander. He was non-selected for promotion to Commander by the FY 1997 and 1998 chaplain promotion boards.
The evidence from the Navy and DOD Inspector General investigations clearly shows (1) faith group played a determining part in the selection of chaplains for promotion during those boards, and (2) chaplains with records inferior to CH Quiles were selected for promotion while he was not. The reason he was not promoted was because he was a Non-liturgical and a member of a disfavored faith group, whereas those with inferior records who were promoted were from favored Liturgical faith groups. After his non-selection, CH Quiles was told to leave the Navy. His retirement in December 1998 following his second FOS was a constructive discharge.
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At first, CH Quiles thought his non-selection was “the luck of the draw.” Through one of the co-Plaintiffs, he learned of the Stafford Report and by comparing his record objectively with those who had been promoted, he knew his FOS was not based on his record but other factors, including retaliation. Liturgical chaplain CAPT George Cooper was a board member on the FY 97 board. He had been CH Quiles senior chaplain previously, during which time CH Quiles confronted CAPT Cooper over what appeared to be an illegal practice. CAPT Cooper remained hostile to CH Quiles and should have recused himself from the board. CH Quiles believes CAPT Cooper zeroed him out in retaliation for CH Quiles’ confrontation over CAPT Cooper’s wrongdoing.
CH Quiles’ improper FOS resulted in an illegal and constructive discharge. w. DANIEL ROYSDEN (CFGC) was an active duty Navy Chaplain. His August 4-5, 2000 board deposition captures many of the CHC’s incidents of retaliation against him. CH Roysden joined the chaplain candidate program in 1981, was initially commissioned as a chaplain endorsed by the United Methodist Church and accessed into the Navy reserve. Roysden Deposition [28:1-21]. He had numerous assignments as a Naval Reserve chaplain filling shortterm recalls for active duty. He had good reports and a good reputation. Before coming to active duty, CH Roysden changed his endorsement from United Methodist to CFGC. His detailer warned him against changing endorsements from the Liturgical United Methodist to the Non-liturgical CFGC: When he found out I was switching from United Methodist to CFGC his statement was, “You just signed your death sentence.” He said, “If you had switched from Non-liturgical to Liturgical, you’d probably be okay.” He said, “In fact, I had done that”-himself-but he said, “by switching the opposite way, it will be very difficult for you in the future.” [51:5-12].
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Roysden’s first assignment as an active duty chaplain was to a ship stationed in Japan. Just before his first deployment, the SURPAC senior chaplain, CAPT O’Donnell, visited Roysden’s ship and requested an interview with the Captain without telling Roysden the specific purpose. The Captain later informed him CAPT O’Donnell had warned the CO “do not be surprised if we have to relieve [Roysden] for cause. He’s from a church group that has no good track record, they’re a brand-new denomination.” [79:4-25]. His captain gave CH Roysden outstanding fitness reports.
Other Navy chaplains told CH Roysden he had made a mistake changing his endorsement from Methodist to CFGC and that it would hurt his career if he did not get out of “that group.”
CH Roysden’s next duty station was Naval Station Pearl Harbor. He found a place for a charismatic group to meet when the command chaplain, CAPT Craycraft, would not permit them to use the chapel for services. CH Craycraft told CH Roysden, “[p]eople like them, people who were Pentecostal Charismatics not only had no business holding worship on naval property, they had no business being in the Navy”, knowing CFGC endorsed CH Roysden. [139:2-7].
His command chaplain at Balboa Medical Center, San Diego, CA was RC CAPT Dave Young. A female chaplain, Fran Stuart, reported to Roysden CH Young was sexually harassing her. She filed a complaint and CH Young attacked Roysden and removed him from his responsibilities in administration and as his number two person when Young was gone. When told he could not do that, CH Young said, “I can do whatever I want. You betrayed me by not telling me that Fran Stewart was going to file a sexual harassment complaint against me” [189:25-190:10]. CH Roysden was obligated not to reveal CH Stuart’s information and claims.
When Roysden complained of CH Young’s retaliation, the JAG and the EEO at the San Diego Medical center “filed it illegally, as I understand it now, under Fran Stewart’s sexual
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harassment complaint.” [127:7-12]. The EO investigation found Roysden’s removal “as the administrative second-in-
command had the appearance of retaliation. And [CH Young] was directed to reinstate me to all the responsibilities I had before his removal of me from those responsibilities, and he refused to comply with that directive.” [128:25-129:10].
Roysden points out numerous deficiencies in the resulting investigations of both Stewart and his complaints suggesting official interference to protect CH Young. Roysden’s whistleblower complaint, which should have been handled by the JAG, was sent to the Equal Opportunity office for investigation along with CH Stewart’s complaint but he was not given an “advocate”, a requirement under the EEO regulations. [191:7-25].
CH Young barred Roysden from “any official part of the office”, refused to talk to him, and tried to have him reassigned to an isolated post in Puerto Rico on short notice, contrary to regulations. The Catholic Junior detailer told Roysden that he would take the orders despite regulations which precluded this assignment. Roysden called Mrs. Berto at the Chief’s office. She informed the detailer the reassignment was improper and canceled the orders. [192:2194:10].
When CH Roysden returned from the Korean Air Crash Disaster on Guam, Young told him not to discuss anything about what happened, what he saw, and the ministry with any others, greatly increasing Roysden’s PTSD. “I want you to shut up about this crap. You’re not allowed to talk to anybody else about this” [207:1-2].
CH Young also attempted to degrade Roysden’s performance by failing to address his significant participation in the Korean Airlines crash where he “had done more debriefings than anyone else on the team” and played a significant role in the post crash operations and memorial
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ceremonies. [195:17-196:19]. Young favored Catholics who did not like evangelicals and always gave them the highest
ranking, [34:6-7], but acted with prejudice to those who did a good job in their ministry, cooperated with other chaplains and/or objected to his high-handed prejudice. CH Young retaliated against any priest or anyone else who objected to his decisions while being very favorable to his fellow priests that just toed his party line. CH Young gave RC CH D’Auarora the lowest ranking, [234:8-13], despite “doing more work than most of the other lieutenants.” [235:712]; he was given the “early promote” and the number one ranking after CH Young left.
CH Young moved Catholic CH Dombrowski early because he challenged CH Young’s ranking him above CH Paul. [235:20-to 36:17]. Dombrowski was “highly respected throughout the hospital and a person who was open to friendship and ministry to anyone of any faith background.” [238:7-18].
CH Young moved RC CH Klarer early so he would not have to compete against the other LCDRs under a new command chaplain. [237:1-11]. CH Young ranked CH Livingood, who was not liked on the wards or by staff, the number one Lieutenant among six. “CH Livingood, was ranked dead last.” when CH Young left [243:13- 245:24].
CAPT Young had told Roysden “he would make sure that I did not make commander”, [85:23-25]; CAPT Young was a personal friend of the Chief, RADM Holderby, because they were roommates in chaplain school and “most of the 0-6's have a connection system and will talk up or talk down certain chaplains.” [86:2-12].
In fact, the person from San Diego that was on that board, after the board met, was in the hospital perhaps a month later and he was meeting the chaplains. The statement he made to me was, “oh, you’re CH Roysden.” Which, for some reason, I couldn’t understand why he would make the statement. Instead of “Oh, it’s nice to meet you,” his statement was “Oh, you’re CH Roysden.” [86:16-23].
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The BCNR recognized Roysden had been harmed but refused to follow logic or reason in denying his appeal of CH Young’s damaging reports. The BCNR said,
“we recognize the appearance of discrimination, retaliation, and a hostile work environment, but we feel that this in no way impacted your fitness reports and your chances for promotion.” [122:12-16] When Roysden attempted to mentor and train Junior chaplains who had come to the San Diego Middle Center, or attempted to get CH Young to discuss issues with his Junior chaplains who were having troubles, CH Young berated him. [80:13-84: 1]. CH Young said “I will make sure you never make 0-5. You can count on that.” [83:25-84:1]. While CH Young would give others “glowing reports” about Roysden, “in my personal encounters with him, he was always this very abusive, I don’t like you, you’re this way or that way.” [84:6-10]. CH Young would get together with the other two Catholic priests and “make policy for the Protestant Chapel”. “The three of them would decide on promotion recommendations for their chaplains” [105:12-15], and made decisions affecting ministry, including Protestant worship, without consultations with the Protestant chaplains. [239:22-240:9]. Admiral Diaz, the Medical Center commander, spoke to CH Roysden as he checked out of the hospital and apologized for what happened with the investigation. He said he never dreamed that his biggest problem at the Hospital would be the chaplains’ office. He was amazed at what went on. He said,“I couldn’t control the investigation [but] could only go on the recommendations”, not recommendations he would’ve made. Admiral Diaz said immediately upon the release of investigation, he, [Diaz] fired CH Young. CH Young was not fired “due to the reported intervention of Young’s three-star friend.” [281:4-25]. CH Roysden’s record was superior to others selected by the FY 98 board, a fact known because the Stafford Report provided the rankings and scores of those selected. His record, with
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the exception of “two Bs as a reservist, all his active duty evaluations were all “As”.[72:23-73:9]. CH Roysden requested an investigation of “an improper removal of a fitness report from
my records and an attempted cover-up of that removal by the individual who did it [at] BUPERS.” That was a special fitness report by Admiral Diaz “documenting my participation in the Hurricane Mitch recovery efforts in Honduras and Nicaragua”, a very good report which was removed from his file before the FY 2000 board for commander, a fact admitted by Mr. Pool at BUPERS. [288:6-290:9]. The investigation was a farce, like those before it.
CH Roysden’s injuries include consistent treatment as a third class citizen by senior chaplains because he was endorsed by CFGC, and because of retaliation and denominational prejudice denial of recognition awards for his outstanding performance, promotion to Commander in the Navy, the opportunity to compete for other promotions, a full career, and promotions in the Navy. The CHC placed CH Roysden under abusive and hostile chaplain supervisors who inflicted great stress and strain on CH Roysden and his family. Senior Navy officers allowed, facilitated and covered-up RC CAPT Young criminal and mental abuse. CH Roysden retired after multiple FOS 2007 and now resides at 305 Sandalin Lane, Peachtree City, GA 30269.
x. MARY HELEN SPALDING (CFGC) enlisted in the Navy in September 1983, attended and graduated from officer’s candidate school in 1986, and transferred into the Navy’s Chaplain Corps in August 1990, endorsed by CFGC. She was hand picked as the first woman chaplain to serve on an aircraft carrier after service in the Gulf War and the Parris Island Marine Corps Recruit Depot at Parris Island. She was named Navy Chaplain of the Year in 1995 while at Naval Air Station Key West, FL after service on the aircraft carrier USS Forrestal. At Key West, the CHC then assigned as her command chaplain supervisor a Protestant Liturgical chaplain who had previously demonstrated his inability to get along with female chaplains and other faith
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groups. Upon his arrival at Key West, he told CH Spalding he could not work with her because she was a woman.
Rather than deal with the Protestant Liturgical command chaplain who created the problem, the Navy then reassigned her in a prejudicial manner that ensured she would not be competitive for selection to Commander. She was transferred to the 2d Marine Division. As a LCDR she was initially given a supervisory position normally assigned to a Commander. That changed when the new Division chaplain took over her responsibility and effectively ruined her career by giving her degraded assignments and fitness reports. The only explanation for that treatment is retaliation and denominational prejudice.
Faced with the prospect of being separated after FOS because of the damaging impact on her career due to her Key West and subsequent experience and assignments, she retired at 15 years under the Temporary Early Retirement Act (“TERA”) in October 1998. The Navy’s overt and official hostility to her as a CFGC chaplain resulted in her being uncompetitive for promotion, amounting to a constructive discharge. Had it not been for this prejudice, CH Spalding would have been promoted and finished her career as a Navy chaplain. She now resides at 610 Walk the Plank, La Jolla, TX 78560.
CH Spalding’s injuries include being treated as a second-class citizen because of her CFGC endorsement, being denied a fair opportunity to compete for a full career and promotions in the Navy, denial of promotion to Commander in the Navy and the opportunity to compete for other promotions. The CHC placed CH Spalding under abusive and hostile chaplain supervisors who retaliated against her based on her religion and her appropriate complaints about denominational preference, inflicting great stress and strain on CH Spalding.
y. ARMANDO TORRALVA (Gibson) began his military career as a Chaplain 58

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Candidate endorsed by the Associated Gospel Churches, and was commissioned a 2LT in the USAF Reserve in August 1981. He was commissioned in the Air Force Chaplain Service, remained in the Air Force Reserve from 1984 to 1988, and was promoted to CAPT (O-3). He then entered the Navy as a chaplain in July 1988.
CH Torralva was chaplain for the Marine 1 Squadron which flies the presidential helicopters during the presidency of George Bush, Sr. In 1997 CH Torralva was selected for postgraduate school and attended Princeton Theological Seminary. The normal chaplain postgraduate education program does not have sufficient hours to qualify for a degree, but CH Torralva took extra hours and earned a Master of Theology degree. Despite the fact the Secretary’s instructions require boards to look at postgraduate experience in a positive light, and the fact he was selected for postgraduate school based on the strength of his record, CH Torralva was not selected by the FY99 CDR Board. He was scheduled to fill a CDR’s billet at COMFAIRMED Headquarters in Naples, Italy. Although he reminded the detailer that he had been FOS, the detailer reviewed his records and indicated to CH Torralva he had a competitive record and would probably be picked up by the next board.
Reporting to COMFAIRMED in August 1999, CH Torralva discovered his billet was unfunded, meaning it had no financial support, and the billet had been withdrawn from the Headquarters. Nonetheless, he was assigned as a force chaplain, which normally would have meant exercising supervisory responsibilities over subordinate chaplains as a member of the Admiral’s staff. CH Torralva did an inspection of a chapel program at Rota, Spain in his role as force chaplain. The command chaplain was Catholic CAPT McLaughlin.
CH Torralva found minor improprieties and problems, including numerous complaints against the junior RC chaplain from his parishioners and staff who complained he was not doing
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his job. CH Torralva also found minor discrepancies in the Religious Offering Fund. The report embarrassed the command, particularly since a Protestant Hispanic pointed out their difficulties.
CH Torralva’s senior chaplain, CH (CAPT) Gentolli at CINCUSNAVEUR, the command chaplain of Naval Forces in Europe, directed CH Torralva to evaluate the problems at the Naval Support Activity at Naples. CH Torralva found the Religious Ministries Department under the Roman Catholic CH Ronald Buchmiller was divided, demoralized and dysfunctional due to CH Buchmiller’s lack of leadership and hostility toward Protestant evangelicals. CH Torralva recommended in a white paper to CH Gentolli that they initiate team building exercises to help remedy the problem. He was criticized for his inspection and recommendation by both CH Buchmiller and the NSA Commander, CAPT Gray, who blamed the problems on a previous chaplain, Phil Veitch, who allegedly stirred up division and dissension. However, CH Veitch had been gone for some time and an objective evaluation showed the real problem was CH Buchmiller’s anti-evangelical attitudes and prejudice. The Navy then transferred CH Torralva from COMFAIRMED to NSA Naples, working under CH Buchmiller, the same command chaplain he had just criticized.
While at COMFAIRMED, CH Torralva assumed the pastorship of a evangelical congregation of American military personnel assigned to NATO Headquarters at Armed Forces South (AFSOUTH). When he was reassigned to NSA Naples, CH Torralva retained his position as the chaplain/pastor for that congregation. When the new command chaplain, CH (CAPT) Steve Rock, another Catholic, reported in, his first words to CH Torralva were he wanted the AFSOUTH congregation disbanded. CH Torralva communicated that to AFSOUTH personnel who pointed out under Title 10 and the Memorandum of Support among the Armed Forces the Navy had to provide support for the religious needs of AFSOUTH and therefore CH Rock could
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not shut down the evangelical congregation. This became a continuing bone of contention between RC CH Rock who wanted to eliminate the evangelical congregation, and CH Torralva, their pastor.
CH Torralva was supposed to be the deputy command chaplain because of his seniority as a LCDR, but CH Rock refused to allow CH Torralva to function as such. CH Rock made, and permitted others to make, openly disparaging anti-Hispanic comments about CH Torralva.
When the base commander, CAPT Gray, planned to initiate a “teen clinic” which would dispense birth control and provide sexual disease treatment to teenagers without parental consent, CAPT Gray directed the chaplains to help sell the program to the community. CH Torralva preached a sermon on parental responsibility, including their obligation to instruct their children in sexual matters, and mentioned the opening of the Teen Clinic without either criticizing or preaching against it. The sermon caused a firestorm in his congregation, which included high ranking Army and Navy officers, because the program was being imposed without parental involvement or warning. CAPT Gray was embarrassed and accused CH Torralva of violating an order not to discuss the Teen Clinic until such time as the command was ready to announce it to the community. CAPT Gray and CH Rock retaliated against CH Torralva on his fitness reports. A subsequent Article 138 investigation initiated by CH Torralva exonerated CAPT Gray. The investigator was a member of CH Rock’s congregation; several of the witnesses claimed the investigator misrepresented their testimony and refused to sign statement or statement summaries. The investigation highlighted the dysfunctional and divisive Chaplain Department under CH Rock but nothing was done.
The promotion rate of Hispanic Protestants is clearly below that of Hispanic Catholics. It is believed this is due to a perception among many Catholic board members Hispanic personnel
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should be Catholic, not Protestant or evangelical, a perception flowing from comments made to several Hispanic non-Catholic chaplains, including CH Torralva. The fact that CH Torralva could be selected to be the chaplain for Marine 1 Squadron, postgraduate school, and sent to occupy a CDR’s billet while still a LCDR is clearly inconsistent with his FOS. The only explanation is something other than his record influenced the board in retaliation for his beliefs and record. The Navy system of secret votes and small numbers of board members gave unbridled discretion to denominational representatives with historic animosities to denominations such as CH Torralva’s.
In summary, the CHC placed CH Torralva under abusive and hostile chaplain supervisors who retaliated against him for defending his congregation and beliefs, and inflicted great stress and strain on him and his family. His injuries include treatment as a second-class citizen, being denied a fair opportunity to compete for Commander, further promotions and a full career in the Navy as a result of the CHC’s unlawful retaliation and failure to address remove the tools that allow such retaliation.
CH Torralva retired in Corpus Christi, TX because of multiple FOS. He resides at 6637 LaBianca Dr., Corpus Christie, TX
z. DAVID S. WILDER (Adair) resides 105 La Salle St., Wilmington, NC 28411. He entered active duty in September 1985 endorsed by the SBC. He was non-selected for Commander in 1999 and 2000 despite an outstanding record but in fulfillment of several Liturgical chaplains who swore they would prevent him from promotion. Those hostile promises are easy to keep due to the Navy’s promotion procedures which facilitate retaliation and religious discrimination without accountability.
CH Wilder’s many examples of retaliation and religious hostility based on his status and performance as a Non-liturgical chaplain are described in his 12/16/2003 Adair Deposition. The
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samples and highlights provided here and in his deposition in no way encompass all of the blatant and obvious incidents of retaliation and faith group prejudice he experienced.
His first senior Liturgical chaplain, CH Ha, improperly expected Wilder, a Southern Baptist, to be able to do a Liturgical service. His command assigned him to pastor the General Protestant service at his base in Okinawa. His General Protestant service with Baptist overtones averaged approximately 100 to 125 per week. In June 1992, Episcopal CH Williams, the incoming Marine Expeditionary Force chaplain who was not in Wilder’s chain of command, visited CH Wilder’s service. CH Williams made “suggestions” to“improve” CH Wilder’s service which converted the General Protestant service into an Episcopal service. CH Wilder refused and CH Williams, not in CH Wilder’s chain of command, “fired” CH Wilder in front of his family and congregation without prior notice but with the collusion of CH Wilder’s own command chaplain, CDR Wilson, who refused to meet with Wilder after his humiliating removal. CH Williams converted it into an Episcopal mass, reducing attendance to about 12 people per week.
CH Wilder subsequently started a Baptist service in the base theater which grew ten times larger than CH Williams’ service. CH Williams tried to close CH Wilder’s service, claiming sabotage. CH Wilson subsequently unsuccessfully attempted to destroy CH Wilder through a low fitness report, despite CH Wilder’s outstanding accomplishments as a pastor and chaplain, evidenced by the size of his congregation. The Commanding General defeated CH Wilson’s attempt by ordering him to rewrite the fitness report. CH Wilson retaliated further by not processing a reward promised to CH Wilder by the General for his performance.
CH Williams became enraged when he discovered CH Wilder was promoted to LCDR because “Wilder had managed to keep him from intervening” with CH Wilder’s promotion opportunity. Wilder Deposition (“Wilder”) [175:15-20]. CH Williams promised “he would ensure
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that I never get selected for promotion” because “he had the power to do it.” Id. [179:18-20]. CH Wilder became an Adair plaintiff in March 2000 while assigned to Camp Lejeune,
NC. Fox News contacted him after Adair’s Motion for Class Certification was granted. CH Wilder contacted the appropriate USMC authorities and asked for permission and guidance, including about wearing his uniform. He was told that was okay as long as he did not say anything inflammatory, i.e., something not factual. [189:1-192:21]. CH Wilder reported after the interview aired his command chaplain, Chaplain Moson, whose office was close to his, began receiving “a lot of phone calls from Chaplain Iasiello [the Deputy Chief of chaplains] office.” [194:1-7]. Subsequently, CH Moson ordered CH Wilder to “not appear with the media in uniform again” [196: 1-4] and also told Wilder “Chaplain Iasello was hot about [the interview]” and “wanted me charged. Wanted this thing taken care of.” [197:10-11].
CH Wilder also testified CH Scordo, a RC who became the acting command chaplain after Chaplain Moson left, told CH Wilder “he [Scordo] was a man under orders, and that his most important vow that he takes as a Catholic priest is his vow of obedience to his seniors and the Church, and this is in context of what had taken place here at Camp Lejeune. [200:16-20]. This referred to CH Wilder’s removal from the training and operations billet, which was a “Commander” billet, and being placed in a Lieutenant Junior Grade billet over at the Brig, and that I not be utilized as the Senior Protestant, and ... everything that I could contribute to the Protestant program be totally not allowed”, which CH Wilder described as marginalization. [200:24-201:8]. During his time, CH Scordo was running the chaplain’s office from Virginia where he was recuperating from surgery,
CH Scordo directed a backdated fitness report be submitted for CH Wilder which was unfavorable, prompting CH Wilder to file a request for an investigation based on the retaliation
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following his Fox News appearance. [224:7-229:17]. The investigator was a Reserve chaplain who told both CH Wilder and his counsel if CH
Scordo had placed CH Wilder in a Lieutenant Junior Grade [LTJG] billet, that would be retaliation. The investigator was provided an official document describing the Brig chaplain’s positions and the authorized rank, LTJG. The investigator did not find retaliation despite clear evidence of negative personnel actions against CH Wilder after his Fox News interview.
The CHC placed CH Wilder under abusive and hostile chaplain supervisors who retaliated against him and inflicted great stress and strain on CH Wilson and his family. His injuries include treatment as a second-class citizen, being denied a fair opportunity to compete for Commander, further promotions and a full career in the Navy as a result of the CHC’s unlawful retaliation and failure to address and remove the tools that allowd destruction of his career.
CH Wilder was forced to retire due to statutory limits on FOS LCDRs. aa. BARBY EARL WILSON (CFGC) entered the CHC in 1977 under an initial endorsement of the Church of God in Christ, a Non-liturgical Christian denomination. He served tours of duty at Governors Island, NY; Norfolk, VA; Little Creek Amphibious Base, VA; Okinawa; Fleet Religious Support Activity; duty as ship’s chaplain; and Director of Pastoral Care Services in Saudi Arabia during the Gulf War. In 1983, he filed a religious discrimination charge against a Liturgical chaplain who would not allow CH Wilson to conduct religious services according to his Non-liturgical practices. His superior chaplain, a Lutheran, told him that if he expected to make the Navy a career he should drop his charge or change it from a religious to a racial discrimination charge. CH Wilson refused to do so on principle. In retaliation, his supervisory chaplain gave him bad fitness reports and promised he would make sure CH Wilson was not promoted to CDR, a promise which turned out to be true.
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In 1986, he changed his endorsement to CFGC. Although promoted to LCDR, he was not selected for CDR, filling his Lutheran senior chaplain’s promise. Throughout the remainder of his career, CH Wilson experienced continuing retaliation and prejudice in his treatment and assignments. The Chief of Chaplains, RADM Koneman, also a Lutheran, intervened several times to prevent CH Wilson from receiving career enhancing assignments. CH Wilson’s command chaplain at Portsmouth Naval Hospital selected CH Wilson to accompany a hospital medical team sent to support the First Gulf War. The Chief make sure someone else was assigned to the team. A friend reported to CH Wilson, after the large number of expected casualties was briefed, the Chief said, “if things work out the right way, that [referring to estimated deaths] will take care of our problem” referring to CH Wilson.
CH Wilson retired in 1994 with 17½ years of service, having seen that religious and racial discrimination would not let him be promoted. That discrimination included clear retaliation from the Chief and his superior chaplains in assignments and fitness reports based on CH Wilson’s religious practices and faith, and his opposition to interference in the conduct of his ministry, chaplain duties and worship services. He now lives at 505 Roves Court, Virginia Beach, VA.
CH Wilson’s injuries include being treated as a second-class citizen, being denied a fair opportunity to compete for Commander, further promotions and a full career in the Navy. The CHC placed CH Wilson under abusive and hostile chaplain supervisors who unlawfully retaliated against him and inflicted great stress and strain on CH Wilson and his family.
B. The Defendants 17. The following U.S. Navy officials are sued as defendants in their official capacity only
a.. Defendant Secretary of Navy is an appointed official responsible for civilian 66

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control of the U.S. Navy, including the Naval Reserve of which CH Harkness is a member. He is responsible for promotion boards and their procedures.
b. The Commander of the Naval Personnel Command administers the promotion boards at issue, including establishing and monitoring the promotion procedures, and establishes personnel management policies.
c. The Navy Chief of Chaplains. The Navy is organized into several branches or categories, i.e., subordinate groupings of individuals possessing similar qualifications or skills. The Navy Chaplain Corps (“CHC”)is one of these branches, 10 U.S.C. § 5142, whose members are commissioned officers possessing specialized religious education, training and experience to meet the spiritual needs of those who serve in the Navy and their families. The Chief of Chaplains (the “Chief”) is responsible for administering the CHC and meeting the Department of Navy’s free exercise needs. He/she is a Rear Admiral (“RADM”), the highest ranking chaplain.
V. THE CHC’S ILLEGAL RETALIATION AND PREJUDICIAL ACTIONS COUNT 1
ILLEGAL RETALIATION 18. The allegations in paragraphs 1 through 17 above are incorporated herein by reference as though pleaded in full. 19. LCDR (Ret) Gary Heinke’s Declaration at Exhibit 10 shows the depth of hatred, prejudice, arrogance and animosity by the senior CHC leadership, including the Chief, against plaintiffs, junior Non-Liturgical chaplains doing their duty to faithfully represent their endorsing agencies, serve the military personnel they represent and their commanders and ministry will do all Department of Navy (“DON”) personnel. This animosity is reflection of the historic animosity of Liturgical versus Non-liturgical theologies the religion clauses are supposed to prevent. The
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CHC’s illegal retaliation and motivation, destroying plaintiffs’ careers seemingly out of spite, is unconstitutional. 20. The Navy’s failure to provide objective criteria for measuring chaplain performance in its fitness reports allowed hostile supervisory chaplains and commanders to use subjective criteria unrelated to chaplain ministry to facilitate discrimination and/or retaliation against plaintiffs. 21. The Navy and/or CHC through certain senior chaplains have illegally retaliated, punished, harmed or otherwise deprived these plaintiffs of their established rights to provide service to Navy personnel; a fair opportunity to compete for appropriate promotions, assignments and career opportunities; and a career. These illegal actions responded to plaintiffs’ exercise of their constitutional, statutory and regulatory rights and objecting to senior chaplains’ abuse of power that clearly conveyed the message of second-class citizenship. This included improper and illegal burdens on plaintiffs’ ministry, restrictions on their rights to represent their endorsing organizations, and marginalization of their actual service and limitation on career opportunities.
a. Such retaliation and its harmful consequences are in response to plaintiffs’ exercise of their rights and responsibility to represent their endorsing faith group; meet Nonliturgical DON personnel religious needs; expose CHC or Navy misconduct, prejudice, bias, and illegality; and/or in bringing Chaplaincy to defending their rights. b. Whether the retaliation was the result of individuals acting on their own or responding to real or imagined slights, denominational bias, “payback” for exposing wrongdoing, or advancing the CHC’s policy of protecting its pro-Liturgical culture is immaterial. The CHC and Navy leadership condoned and encouraged the abuse of unbridled power delegated to chaplain board members by failing to effectively address abuses, retaliation and denominational preference despite numerous warnings and
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evidence. c. The Navy and the CHC was aware of the actual denominational preferences, retaliation and prejudice by IG investigations, CAPT Larry Ellis’ report on Non-liturgical detailing, Exhibit 11, and complaints from chaplains that led to the Center for Naval Analysis (“CNA”) study of CHC promotions, Exhibit 12 (showing consistent denominational preferences in promotion rates each rank with RC’s always highest, Liturgical second). The Navy and the CHC were aware of certain senior chaplains had a pattern of abusive conduct, retaliation and religious and racial prejudice. d. IG inspections, the CNA report and BCNR appeals and decisions made the Navy and CHC aware of the potential for and actual abuse and retaliation through denominational networking and the challenged selection board procedures’ delegated unbridled power and lack of accountability. Defendant failed to prevent or remediate retaliation, denominational preferences and abuse. 22. The Navy and the CHC were on notice and aware of the ability of senior chaplains to retaliate against junior chaplains through the use of denominational networks and personal relationships with board members but failed to provide effective guarantees such illegal practices, denominational factors or considerations would not influence selection board decisions or violate religious neutrality in awarding government benefits such as promotions. 23. The challenged procedures are unconstitutional under the First and fifth Amendments because they lack effective guarantees denominational or religious factors cannot influence or determine selection for promotion or selective early return. These procedures also preclude court carefully examining the decision process that uses denominational representatives to award benefits to similar or other denominational representatives in order to ensure that decisions are
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denominationally neutral 24 Statistical analysis of 38 years of CHC promotions, Exhibit 2, show 80% of promotion board memberships were filled by five denominations, producing consistent denominational hierarchies. This is per se an unconstitutional religious preference.
COUNT 2 25. The allegations in paragraphs 1 through 24 above are incorporated herein by reference as though pleaded in full. 26. 10 U.S.C. § 613a’s ban on discovery is unconstitutional under the First and Fifth amendments as applied to claims of unconstitutional retaliation and denominational preferences.
a. Witness of CHC selection board proceedings, including some plaintiffs, can and are willing provide personal testimony of retaliation and religious preference and prejudice supporting plaintiffs’ claims.
b. The Secretary’s waiver of the oath of secrecy and § 613a’s protection of broad proceedings for some denominational representatives but not for plaintiffs violates the First and Fifth Amendments.
COUNT 3 CONSTRUCTIVE DISCHARGE OF CERTAIN PLAINTIFFS 27. The allegations in paragraphs 1 through 26 above are incorporated herein by reference as though pleaded in full. 28. The CHC through its challenged procedures enabling retaliation created a hostile environment, and used the realities of the “up or out” Navy promotion system and separation process to make working conditions intolerable for certain of these plaintiffs who (a) after being FOS, left the Navy rather than endure more hostility, abuse, family stress, and humiliation; or (b)
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when eligible, chose to retire under the TERA or other programs lest they be separated from the Navy with nothing. 29. The following plaintiffs were constructively discharged because, as a result of retaliation, they had to retire due to FOS and/or statutory time in service or grade limits, or other hostile action: Blair, Klappert, LaValle (98), Quiles, Spalding (TERA), and Wilson (TERA).
COUNT 4 THE NAVY HAS DISCRIMINATED AGAINST NON-LITURGICAL CHAPLAINS’
RELIGIOUS FREE SPEECH 30. The allegations contained in paragraphs 1 through 29 of the Complaint are incorporated herein by reference as though pleaded in full. 31. Defendants, through some of its senior chaplains, illegally disapproved of, censored, or criticized the Non-liturgical religious speech of chaplains Belt, Lindsay, Royston, Torralva, Wilder and Wilson. Such speech is inherent in their Non-liturgical tradition, practice and worship and protected by the First Amendment and 10 U.S.C.§ 6031 (allows chaplains to conduct public worship according to the customs and norms of the churches of which they are members), and Naval Regulation 0817 which mirrors § 6031.
Count 5 Religious Freedom Restoration Act (“RFRA” )Violations. 32. The allegations contained in paragraphs 1 through 31 above of the Complaint are incorporated herein by reference as though pleaded in full. 33. Plaintiffs claim the challenged actions and procedures result in unconstitutional retaliation and denominational preferences and therefore violate the Constitution, statutes and Navy regulations. If the Court finds the challenged procedures neutral, the Navy’s actions taken against
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these plaintiffs as described in this Complaint and which may be further identified or expanded through discovery will have violated RFRA. The challenged procedures and alleged retaliatory actions have also substantially burdened his free exercise of religion without a compelling government purpose and are not the least restrictive means to achieve any such government purpose or objective. This violates RFRA, 42 U.S.C. § 2000 bb.
VI. PRAYER FOR RELIEF WHEREFORE, plaintiffs pray for a declaration, judgment and other relief against the defendants as described below. A. Declaratory Relief and Judgement. The allegations in ¶¶ 1 through 32 above show there are bona fide disputes between the plaintiffs and defendants concerning whether (1) the above challenged actions by senior chaplains and the CHC constitute retaliation against the plaintiffs’ lawful exercise of their rights under the First Amendment’s Establishment, Free Exercise, Free Speech and Right to Petition Clauses and the Fifth Amendment’s Due Process (equal protection) Clause, RFRA, and DOD and Navy regulations; and (2) the legality of the defendants’ challenged procedures as instruments of retaliation. Pursuant to 28 U.S.C. §§ 2201 and 2202, plaintiffs request this Court render a Declaratory Judgment and an Order that provides the following specific relief. Count 1. A declaration and order that: a. The defendants’ actions against plaintiffs as described herein and as later developed during the litigation was illegal retaliation and denominational prejudice; b. The challenged promotion procedures are improper and unconstitutional tools and means of retaliation because they delegate unbridled discretionary power to persons defined by their religious identity with no guarantees denominational factors, including retaliation, do not
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influence decisions concerning promotion and SER boards and career enhancing assignment; c. Require the defendants to address and remove the penalties to specific plaintiffs’
careers caused by retaliation and hold new promotion and SER boards using procedures with effective guarantees that denominational factors or undue religious influence do not influence the new CHC selection board decisions;
d. Enjoin the defendants to remedy the harms to plaintiffs’ records, including retaliatory fitness reports that harmed plaintiffs. This should include, where necessary, the Secretary’s directive to board members that certain negative reports were illegal and retaliatory, should be viewed in that light, and the plaintiffs performance should be considered exemplary lacking unbiased evidence to the contrary, and reminding the board members of their duty to to make the plaintiff whole by remedying the CHC’s retaliation, prejudice, and misconduct; and
e. Other remedies as appropriate to compensate for the damage done to plaintiffs’ careers and families by the defendants’ failure to protect plaintiffs from retaliation and other unlawful acts. Count 2. A declaration and Order that
a. 10 U.S.C. § 613a’s ban on discovery is unconstitutional under the First and Fifth amendments as applied to claims of unconstitutional retaliation and denominational preferences, and,
b. an Order requiring the Secretary to release board members from their oath of secrecy and cooperate with plaintiffs’ discovery efforts. Count 3. A declaration and Order that
a. declares defendants constructively discharged certain plaintiffs as alleged; and b. requires the Navy to remedy the harms to plaintiffs’ records, including addressing
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retaliatory fitness reports that harmed plaintiffs; c. remedies the harm to plaintiffs’ careers caused by their illegal discharges, including
reinstatement to active duty and back pay until they can be considered by validly constituted promotion boards, and if selected for promotion, appropriate remedies to compensate for the illegally terminated careers, consistent with the guiding principle of making the plaintiffs whole for the government’s misconduct. Count 4. A declaration and order finding the Navy discriminated against certain non-liturgical chaplains’ religious free speech and an order requiring defendants to remedy the damage to specific plaintiffs’ careers by senior chaplains’ or commanders’ prejudicial actions resulting from hostility to plaintiffs’ Non-liturgical religious speech.
Furthermore, plaintiffs request a declaration and an order that defendants have pursued this litigation in bad faith, ignoring their own investigations, evidence, reports and studies, and their obligation under Rule 11 and duty of candor to the court. Defendants litigation tactics, including failure to provide relevant documents, have harmed plaintiffs by delaying justice and allowing the spoilation, loss or destruction of evidence, including faded memories. This has caused plaintiffs to incur unnecessary expenses. Count 5. In the event the Court finds the above challenged procedures are neutral, plaintiffs request a declaration and an order the challenged procedures violate RFRA by burdening ITS’ religious exercise without a compelling government purpose or using the least restrictive means possible. B. Attorneys’ Fees and Other Relief
1. Plaintiffs request this Court award plaintiffs the reasonable costs and expenses of this action, including expert and attorneys’ fees in accordance with the Equal Access to
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Justice Act, 28 U.S.C. § 2412; the Civil Rights Act, 42 U.S.C. § 1988; the Religious Freedom Restoration Act, 42 U.S.C. § 2000-bb; and/or any other applicable statue or rule of law or equity. 2. Plaintiffs request this Court:
a. Retain jurisdiction of this matter for the purposes of enforcing the Court’s orders and ensuring full relief; and b. The Court provide other such relief as may become apparent in the course of litigation.
Respectfully submitted,

Dated: February 28, 2019

/ S/ Arthur A. Schulcz Sr. ARTHUR A. SCHULCZ SR. Chaplains Counsel, PLLC Counsel for the Plaintiffs VA Bar. No. 70 31 21043 Honeycreeper Place Leesburg, VA, 20175 art@chaplainscounsel.com 703-645-4010

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EXHIBIT LIST

Exhibit No. Description of Exhibit

1.

Table identifying eight sources for the 27 plaintiffs’ retaliation claims

2.

Dr. Harald R. Leuba, PhD, “38 Years of Denominational Preference”

3.

Chaplain Corps Selection Voting Machine with Five Buttons: 0, 25, 50, 75, 100

4.

Testimony of RADM Barry Black, Chief of Chaplains, to the Naval Inspector

General Describing “Zeroing Out” and How the Zero Vote Destroys Careers and

Manipulates the Board

5.

Testimony of CDR Mary Washburn (NIG complainant) to the Naval Inspector

General Describing Common Occurrence of “Zeroing Out” on Promotion

Numerous Boards She Had Served on

6.

Denominational makeup of CHC promotion board members from FY 49 through

FY 2002 from records Sturm v. Danzig, 99-cv-2272 (S.D. Cal) and Adair

7.

Declaration of LCDR Jerry Dickerson, CHC, USN

8.

CAPT Jack Stafford, Report on his investigation of the CHC’s FY 1997 and 98

Commander boards in response to a complaint of religious discrimination

9.

Declaration CDR Tim Demy

10.

Declaration of LCDR Gary Heinke

11.

CAPT Larry Ellis’ report on Non-liturgical detailing

12.

Center for Naval Analysis study of CHC promotions 1972-2000

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 Case 1:19-cv-02755-JDB Document 38 Filed 05/18/20 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RICHARD ARNOLD, et al., Plaintiffs, v.
SECRETARY OF THE NAVY, et al.,
Defendants.

Civil No. 19-2755 (JDB)

ORDER Plaintiffs, a group of Protestant U.S. Navy chaplains, have moved for reconsideration of one aspect of the Court’s April 21, 2020 memorandum opinion and accompanying order. See Pls.’ Mot. for Clarification or Recons. Concerning 10 U.S.C. § 613a & Retaliation Claims, & Other Relief & Supp. P. & A. (“Recons. Mot.”) [ECF No. 35] at 1. As relevant here, the Court’s April 21 opinion held that plaintiffs’ attempt to challenge 10 U.S.C. § 613a—which bans discovery of the Navy’s selection-board proceedings—was barred by res judicata. See Arnold v. Sec’y of Navy, 2020 WL 1930393, at *7 (D.D.C. Apr. 21, 2020). Plaintiffs ask the Court to reconsider its § 613a ruling. See Recons. Mot. at 1. As an initial matter, plaintiffs do not identify which of the Federal Rules of Civil Procedure their motion is brought under. Although they style their motion as one “for clarification or reconsideration,” id. at 1 (emphasis added), nothing in their briefing asks “the Court to further explain or clarify” anything in the April 21 opinion, Univ. of Colo. Health at Mem. Hosp. v. Burwell, 164 F. Supp. 3d 56, 61 (D.D.C. 2016). Because they instead seek to revisit the merits of

1

Case 1:19-cv-02755-JDB Document 38 Filed 05/18/20 Page 2 of 5
the Court’s ruling, the Court will treat the motion as a motion for reconsideration under Rule 59(e).1
“Motions under Fed. R. Civ. P. 59(e) are disfavored and relief from judgment is granted only when the moving party establishes extraordinary circumstances.” Niedermeier v. Office of Max S. Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001) (citing Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. Cir. 1998)). “A Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). Rule 59(e) “may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quotation omitted).
Plaintiffs do not identify an intervening change of controlling law or new evidence that would warrant reconsideration of the Court’s ruling. To prevail on their motion, then, they must show that the Court committed clear error in ruling that their challenge to § 613a was barred by res judicata. But plaintiffs do not actually argue that the Court’s res judicata decision was erroneous. Nothing in their motion addresses the Court’s discussion of issue or claim preclusion. At most, plaintiffs argue that the underlying decision that precluded their present attack on § 613a addressed only § 613a’s application to systemic claims, rather than individual claims. See Pls.’ Reply to Defs.’ Opp’n to Pls.’ Mot. for Clarification or Reconsideration (“Reply”) [ECF No. 36]
1 The Court’s April 21 opinion and order disposed of all the claims in the case by either dismissing them or severing them to become their own actions. See Apr. 21 Order [ECF No. 34]; M.M.M. ex rel. J.M.A. v. Sessions, 319 F. Supp. 3d 290, 295 (D.D.C. 2018) (noting that “[s]evered claims become independent actions that proceed separately”). As a result, Rule 59(e), rather than Rule 54(b), governs this motion. See Fed. R. Civ. P. 59(e) (governing motions to alter or amend a judgment).
2

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at 2. This argument is precisely the same one that plaintiffs made in opposition to the Navy’s motion to dismiss. Compare Recons. Mot. at 4 (arguing that by barring them from obtaining evidence of the Navy’s selection board proceedings, § 613a makes it impossible for them to prove their individual retaliation claims), with Pls.’ Opp’n & Resp. to Defs.’ Mot. to Dismiss under Fed. R. Civ. P. 12(b)(6) [ECF No. 31] at 22 (arguing that “[d]iscovery [prohibited by § 613a] is needed because the boards and their secret proceedings are the nexus between the protected activity and the adverse employment decisions or actions resulting from the retaliation”).
The Court rejected that argument as barred by res judicata, see Arnold, 2020 WL 1930393, at *7, because the underlying decision had concluded (in accordance with prior decisions in this long-running litigation against the Navy by plaintiffs and their counsel) that there is not an “unqualified right of access to information needed to prove [constitutional] claims,” In re Navy Chaplaincy, 323 F. Supp. 3d 25, 51 (D.D.C. 2018). In doing so, the Court noted that its previous holding “applies with equal force whether plaintiffs challenge [§ 613a] in litigation involving systemic claims or ad hoc claims,” because there is simply “no ‘constitutional right to evidence in support of . . . constitutional claims,’” Arnold, 2020 WL 1930393, at *7 (quoting Navy Chaplaincy, 323 F. Supp. 3d at 51). Plaintiffs’ argument to the contrary was therefore barred by res judicata, and in any event had (and continues to have) no merit.
Indeed, the arguments plaintiffs make here are the same arguments they have been making for nearly 15 years—arguments that have consistently been rejected by judges handling this litigation, despite plaintiffs’ faulty suggestion that § 613a’s application to their individual constitutional claims has not been “previously reviewed by this Court,” Reply at 2. See, e.g., Adair v. Winter, 451 F. Supp. 2d 210, 217–22 (D.D.C. 2006) (rejecting plaintiffs’ argument that the predecessor provision to § 613a was unconstitutional as applied to their individual claims,
3

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concluding (1) evidence of selection-board proceedings was not “essential” because “plaintiffs have available to them other evidence supporting their [individual] claims,” and (2) there was a total “absence of any precedent recognizing a right to statutorily privileged information in a civil case involving constitutional claims”). Plaintiffs’ fourth attempt to relitigate the matter was inappropriate a month ago, as demonstrated by this Court’s conclusion that the challenge to § 613a was barred by issue and claim preclusion. Nothing has changed. Indeed, it is even more inappropriate for plaintiffs and their counsel to make this fifth attempt on a Rule 59(e) motion, which may not be used to “relitigate old matters.” Exxon Shipping Co., 554 U.S. at 485 n.5. The Court has already admonished plaintiffs for continuing to press the issue “despite repeated and explicit judicial warnings” to desist. Arnold, 2020 WL 1930393, at *7. It will not warn plaintiffs or their counsel again.
Plaintiffs also request as relief “two additional modifications” to the Court’s April 21 opinion and order. Recons. Mot. at 8. However, their briefing makes clear that these requests are premised on the Court’s agreeing with plaintiffs and “chang[ing] its § 613a holding,” and that the Court need not consider the requests if it declines to “revisit[] its holding as to [§ 613a’s] application to the individual claims.” Reply at 4, 7. Because the Court so declines, it likewise declines to consider the additional modifications.
Accordingly, it is hereby ORDERED that plaintiffs’ [35] motion for reconsideration is DENIED.2
2 Plaintiffs suggest that if the Court denies their motion for reconsideration, it should dismiss all remaining individual ad hoc claims “because [plaintiffs] cannot meet the criteria for a retaliation claim.” Reply at 7. Previous opinions in this litigation have stated that “[a]lthough discovery into the proceedings of individual promotion boards is relevant to the plaintiffs’ claims concerning individual boards’ actions, such evidence is not a necessary element of a claim of religious discrimination,” because “plaintiffs have available to them other evidence supporting their claims, (e.g. statistical data)” that “may constitute compelling evidence suggesting an intent to employ a denominational preference in promotion decisions.” Adair, 451 F. Supp. 2d at 219. The Court therefore declines to dismiss plaintiffs’ claims on that ground. If plaintiffs believe they do not have sufficient evidence to support their individual claims,
4

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Dated: May 18, 2020

/s/ JOHN D. BATES United States District Judge

they need not request leave of this Court to refile, and the claims will be automatically dismissed on May 21, 2020, pursuant to the Court’s previous order. See Apr. 21 Order at 2.
5

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2012

Decided November 2, 2012

No. 12-5027

IN RE: NAVY CHAPLAINCY,

CHAPLAINCY OF FULL GOSPEL CHURCHES, ET AL., APPELLANTS

v.

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 appellant.
Lewis Yelin, Attorney, U.S. Department of Justice, argued the cause for appellees. W ith him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Marleigh D. Dover, Attorney.
Before: HENDERSON, ROGERS, and TATEL, Circuit Judges.

2
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: In this case, military chaplains, all “non-liturgical Protestants,” allege that the Navy systematically discriminates against members of their religious denominations in the awarding of promotions in violation of “[t]he clearest command of the Establishment Clause . . . that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 ( 1982). The district court denied plaintiffs’ motion for a preliminary injunction, concluding that they lacked Article III standing and, alternatively, were unlikely to succeed on the merits of their claims. For the reasons set forth in this opinion, we reverse the district court’s determination that plaintiffs lack Article III standing and remand for further factual findings regarding their likelihood of success on t he merits.
I.
The Navy maintains a Chaplain Corps of commissioned Naval officers who have the “responsibility . . . to provide for the free exercise of religion” for all members of the Navy and their families. In re England, 375 F.3d 1169, 1171 ( D.C. Cir. 2004) (internal quotation marks omitted). Chaplains perform a “unique” role, serving both “as clergy or . . . professional representative[s] of a particular religious denomination and as . . . c ommissioned naval officer[s].” Id. (internal quotation marks omitted). The Navy divides the Chaplain Corps into four “faith groups”: Catholic, liturgical Protestant, nonliturgical Protestant, and Special Worship. Id. at 1172.
Plaintiffs, current and former military chaplains, are “nonliturgical Protestants.” Non-liturgical Protestants belong to Protestant denominations—including Baptist, Evangelical, Pentecostal, and Charismatic—that follow no formal liturgy

3
in worship services and baptize at the “age of reason” rather than at infancy. In re Navy Chaplaincy, 534 F .3d 756, 759 (D.C. Cir. 2008). In order to become a Navy chaplain, an individual must have an “ecclesiastical endorsement” from a faith group endorsing agency certifying that the individual is professionally qualified to represent that faith group within the Chaplain Corps. In re England, 375 F.3d at 1171–72. Two such endorsing agencies, Chaplaincy of Full Gospel Churches and Associated Gospel Churches, are among the plaintiffs in this case.
Like all Navy officers, chaplains are recommended for promotion by “selection boards” convened to consider whether particular candidates should be promoted to a higher rank. Id. at 1172. Because selection boards are required by statute to include at least one member from the “competitive category” being considered for promotion, selection boards considering chaplain promotions must have at least one chaplain as a member. 10 U .S.C. § 612 (a)(2)(A). By instruction of the Secretary of the Navy, chaplain selection boards are currently composed of seven members: two chaplains and five other officers. SECNAVINST 1401.3A, Suppl. ¶ 1.c.(1)(f). Selection boards make initial promotion recommendations that are subsequently reviewed by the Secretary of the Navy and then submitted to the Secretary of Defense for transmittal to the President. 10 U .S.C. §§ 618(a)(1), (c)(1).
Plaintiffs contend that Naval selection boards discriminate against non-liturgical Protestant chaplains on the basis of religious denomination. Relying on statistical analysis by their expert and other evidence, they assert that non-liturgical Protestant chaplains are promoted to higher ranks at significantly lower rates than are liturgical Protestant and Catholic chaplains, and that candidates are more likely to be

4
recommended for promotion when they share the denomination of the chaplains who sit on the selection board.
Plaintiffs focus on c ertain “policies, practices, and procedures” that they allege “facilitate and allow denominational or faith group favoritism.” Appellants’ Br. 7 (emphasis omitted). Specifically, plaintiffs allege that the small size of the selection boards and the practice of voting in secret allow promotion decisions to be made on the basis of religious bias. Selection board members vote by pressing one of five buttons that indicate the degree of confidence the voter has in the candidate, ranging from zero to 100. P laintiffs contend that because boards are composed of only seven members, a chaplain can essentially veto a candidate by voting a “zero” level of confidence, thus significantly reducing that candidate’s chances of selection. According to plaintiffs, because chaplains can exercise this veto power in secret, they are free to select candidates based on their own religious conceptions of how ministry should be conducted. Plaintiffs also challenge the practice of appointing the Chief of Chaplains as president of chaplain selection boards, asserting that the Chief’s “role and influence as a d ecision maker in the award of Navy benefits introduces religion into the decision and results in denominational favoritism.” Pls.’ Mem. in Supp. of Mot. for Prelim. Inj. 23. Plaintiffs tell us that “the other Armed Services” avoid these problems by convening larger selection boards and requiring public voting. Appellants’ Br. 60.
As we understand it, plaintiffs’ claim rests on two distinct theories. First, in what we shall call their “denominational preference” theory, they assert that selection boards discriminate against non-liturgical Protestants in making promotion decisions in violation of the Establishment Clause and the Fifth Amendment’s equal protection component.

5
Second, plaintiffs assert that the Navy, also in violation of the Establishment Clause, impermissibly delegates governmental authority to religious entities by permitting chaplains to award government benefits in the form of promotions without effective guarantees that such authority will be exercised in a neutral, secular manner.
The Navy takes issue with both theories. With respect to the denominational preference theory, the Navy asserts that there is no “factual basis for [plaintiffs’] claims that Navy chaplain promotion boards had discriminated against plaintiffs in the past or would likely do so in the future.” Appellees’ Br. 36. R elying on i ts own statistical expert, the Navy challenges the methodology employed by plaintiffs’ expert and asserts that its “own evidence establish[es] the absence of any religious discrimination by the promotion boards.” Appellees’ Br. 35. As to plaintiffs’ second theory, the Navy asserts that the authority delegated to chaplains who sit on promotion boards is not at all standardless because the chaplains “must abide by statutory requirements and Navy instructions governing the selection of officers for promotion.” Appellees’ Br. 43.
Plaintiffs filed a motion for a preliminary injunction seeking to enjoin the challenged procedures. Denying the motion, the district court began by concluding that plaintiffs lacked Article III standing, reasoning that their asserted future injury was too speculative because it rested on the assumption that chaplains sitting on future selection boards would “ ‘necessarily favor candidates affiliated with [their] own denomination,’ ” an assumption the court found implausible given that Naval officers “are presumed to undertake their official duties in good faith.” In re Navy Chaplaincy, 841 F. Supp. 2d 336, 34 5 (D.D.C. 2012) (citation omitted). The district court went on t o conclude that even if plaintiffs had

6
Article III standing, the balance of the four preliminary injunction factors weighed against granting injunctive relief. Although the court presumed the existence of irreparable harm because plaintiffs had alleged an Establishment Clause violation, id. at 347, t he court found that plaintiffs were unlikely to succeed on the merits, id. at 345–46, and that the balance of equities and the public interest weighed against granting preliminary injunctive relief. Id. at 347–49. Plaintiffs now appeal.
II.
We begin with the question of whether we have statutory jurisdiction to hear this case. In the district court, the Navy argued that the court lacked jurisdiction to consider plaintiffs’ claims because courts are prohibited by statute from reviewing claims based “on the failure of a p erson to be selected for promotion by a promotion board” unless the person has first exhausted administrative remedies. 10 U.S.C. § 628(h)(1). The district court rejected this argument, In re Navy Chaplaincy, 841 F . Supp. 2d at 344, and the Navy has wisely chosen not to renew it on appeal. As the district court explained, jurisdiction is proper because plaintiffs ask us “to determine the validity of [a] law, regulation, or policy relating to selection boards,” not to review the promotion decisions of individual selection boards. Id.; see 10 U.S.C. § 628(i)(1) (“Nothing in this section limits[] the jurisdiction of any court of the United States . . . to determine the validity of any law, regulation, or policy relating to selection boards.”). We thus turn to the question of Article III standing, an issue we review de novo. LaRoque v. Holder, 650 F .3d 777, 78 5 (D.C. Cir. 2011).
“[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or

7
controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). To establish constitutional standing, a plaintiff must show (1) an injury in fact that is “concrete and particularized” and “actual or imminent”; (2) that the injury is “fairly traceable” to the defendants’ challenged conduct; and (3) that the injury is likely to be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation marks and alterations omitted). And, as we earlier explained in this very litigation, “[i]n reviewing the standing question, we must be careful not to decide the questions on t he merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims.” In re Navy Chaplaincy, 534 F.3d at 760.
Where as here plaintiffs seek “forward-looking injunctive . . . r elief, past injuries alone are insufficient to establish standing.” NB ex rel. Peacock v. District of Columbia, 682 F.3d 77, 82 ( D.C. Cir. 2012) (internal quotation marks omitted). Instead, plaintiffs must show that they face an imminent threat of future injury. Lyons, 461 U.S. at 105; see also O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974). Here, plaintiffs contend that they face future injury because they will likely suffer discrimination on the basis of their religious denomination when they are considered for promotion by future selection boards. This assertion of future injury depends on two subsidiary premises: that plaintiffs will be considered for promotion by future selection boards and that selection boards will discriminate against them on the basis of their religious denomination.
The first premise is undisputed. The Navy concedes that future selection boards may very well consider the promotion of at least some plaintiffs. Appellees’ Br. 19. Thus, this is not a situation in which plaintiffs have asserted mere “ ‘some day’

8
intentions” to engage in the conduct they claim will cause them injury. Lujan, 504 U .S. at 564; see also Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp., 28 F.3d 1268, 1273 –74 (D.C. Cir. 1994) (plaintiffs lacked standing to seek injunctive relief where they failed to allege that they would seek job referrals in the near future from the defendant they claimed would discriminate against them on the basis of race). Here, at least some plaintiffs will probably appear before selection boards in the near future.
The second premise—that selection boards are likely to discriminate against plaintiffs on the basis of their religious denomination—is disputed by the Navy on t he grounds that the asserted future injury depends, as the district court found, on the questionable assumption that “chaplains who will serve as promotion board members will necessarily favor candidates affiliated with [their] own denomination.” In re Navy Chaplaincy, 841 F. Supp. 2d at 345 (internal quotation marks omitted). According to the Navy, mere predictions that chaplains will someday behave in a b iased manner are too conjectural to support standing. It is true that vague predictions of future discriminatory conduct are insufficient to demonstrate the imminent threat of future injury necessary to support standing to seek injunctive relief. In Lyons, for example, the Supreme Court held that a plaintiff who had previously been stopped by the police and subjected to a chokehold lacked standing to seek injunctive relief because the plaintiff’s assertion that the police were likely to apply a chokehold to him again in any future encounter was too speculative to demonstrate an imminent threat of future injury. 461 U.S. at 105–06. We have similarly found standing lacking where plaintiffs claimed future injury based on speculation about alleged discriminatory practices unconnected to concrete policies. See Worth v. Jackson, 451

9
F.3d 854, 860 (D.C. Cir. 2006) (plaintiff failed to demonstrate likely future injury where he “challenge[d] no statute, regulation, or written policy committing HUD to favoring minorities or women, resting his claim instead on speculation, untethered to any written directive, about how HUD is likely to make future employment decisions”).
In this case, however, plaintiffs’ asserted future injury does not depend solely on s peculation about whether individual chaplains will behave in a biased manner. Instead, plaintiffs challenge specific policies and procedures—the casting of secret votes, the small size of selection boards, and the appointment of the Chief of Chaplains as president—that they claim have resulted in denominational discrimination and, if not ended, will continue to do so in the future. Unlike in other cases, like Lyons, where plaintiffs speculated about the very existence of the unwritten discriminatory practices at issue, here the Navy acknowledges that the challenged policies and procedures not only exist, but will continue to govern the conduct of future selection boards. The prospect of future injury becomes significantly less speculative where, as here, plaintiffs have identified concrete and consistentlyimplemented policies claimed to produce such injury. For example, the Supreme Court suggested in Lyons that the plaintiff would have been able to show a likelihood of future injury had he alleged that the City maintained a policy directing or authorizing the use of chokeholds without provocation. 461 U.S. at 105–06. Similarly, in NB ex rel. Peacock, where Medicaid-eligible plaintiffs claimed they faced an imminent threat of future prescription coverage denials without the required notice, we found it significant that plaintiffs had alleged that the defendant maintained “a policy of denying prescription coverage without providing the various forms of notice that plaintiffs claim are required.” 682 F.3d at 85. W e emphasized that plaintiffs had alleged “not

10
only that numerous specific denials of coverage were made without adequate notice, but also that [the defendant’s] guidance and manuals . . . c ontain no provisions for giving Medicaid recipients written notice of the reasons for coverage denials.” Id. (citations omitted).
To be sure, plaintiffs here never allege that the challenged policies directly authorize discrimination against or require disparate treatment of non-liturgical Protestants. Instead, they assert that these policies facilitate or exacerbate discrimination by chaplains serving on selection boards. We take the Navy’s point that the asserted causal link between the policies and the alleged discrimination is more attenuated here than in a case where the challenged policies directly authorize the allegedly illegal conduct. Cf. Worth, 451 F .3d at 859 (plaintiff had standing to challenge HUD’s written affirmative action plan authorizing racial and gender goals in employment). That said, we conclude that plaintiffs’ allegation that the challenged policies will likely result in discrimination is sufficiently non-speculative to support standing. For one thing, chaplains inclined to vote on the basis of their religious preferences may be more likely to do s o under the cover of secret ballots. Moreover, it goes without saying that the small size of selection boards gives potentially biased chaplains more influence over the outcome of the proceedings.
We would have a different view of this issue if plaintiffs’ claims of discrimination on the basis of religious denomination were the type of “fantastic” allegations that have given us pause elsewhere. Tooley v. Napolitano, 586 F.3d 1006, 1009 ( D.C. Cir. 2009) (internal quotation marks omitted). But this is not such a case. Our nation has long grappled with the curse of discrimination on the basis of religious belief. The “spiritual tyranny” of the Anglican

11
Church was one reason why Thomas Jefferson proposed the Virginia Statute for Religious Freedom of 1786. Merrill D. Peterson, Thomas Jefferson and t he New Nation 133–34 (1970 ed.). In the late nineteenth century, reflecting the then “pervasive hostility” towards the Catholic Church, the nation nearly adopted the infamous Blaine Amendment, which would have barred aid to “sectarian”—widely understood to mean “Catholic”—institutions. Mitchell v. Helms, 530 U .S. 793, 828 (2000) (plurality opinion). And in more recent times, courts have invalidated laws that discriminate against particular religious beliefs or practices by laying “the hand of the law . . . on t he shoulder of a minister of [an] unpopular group.” Fowler v. Rhode Island, 345 U.S. 67, 70 ( 1953) (invalidating municipal ordinance interpreted to prohibit preaching in public park by a Jehovah’s Witness but to allow church services by Catholics and Protestants); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 5 42, 546–47 (1993) (invalidating ordinances prohibiting animal sacrifice found to be aimed at suppressing the religious practices of Santeria adherents).
In response to plaintiffs’ claims, the Navy attacks the evidentiary underpinnings of plaintiffs’ allegations and argues that the challenged procedures do not result in discrimination against non-liturgical Protestants. This argument, however, goes to the merits of plaintiffs’ claims, not their standing to bring them. To be sure, the Navy may challenge plaintiffs’ evidence to the extent it relates to standing, but it may not “bootstrap standing analysis to issues that are controverted on the merits.” Public Citizen v. FTC, 869 F.2d 1541, 1549 (D.C. Cir. 1989). Here, the Navy neither disputes plaintiffs’ claims that they will expose themselves to potential injury by applying for promotions nor argues that it has any plans to change the procedures alleged to injure plaintiffs. Instead, the Navy argues that plaintiffs’ evidence fails to demonstrate a

12
pattern of discrimination against non-liturgical Protestants. Perhaps the Navy is right about this, but that is a question for the merits, not for standing, and at this stage we must assume that plaintiffs will prevail on the merits. Thus, in In re Navy Chaplaincy, we “assume[d] arguendo that the Navy’s operation of its retirement system favors Catholic chaplains and disfavors non-liturgical Protestant chaplains in violation of the . . . E stablishment Clause.” 534 F.3d at 760 (internal quotation marks omitted). Here too we must assume that plaintiffs will prevail on their claims that the Navy’s promotion system operates in a similarly discriminatory fashion.
We are thus satisfied that at least those plaintiffs whose promotions will likely be considered by future selection boards operating under the challenged policies have standing to pursue their claims for injunctive relief. Although future injury is not certain, “absolute certainty is not required.” NB ex rel. Peacock, 682 F.3d at 85. It is sufficient that plaintiffs have demonstrated a “likelihood of injury that rises above the level of unadorned speculation—that is, a realistic danger that [they] will suffer future harm.” Id. at 85–86 (internal quotation marks omitted). Because only one plaintiff must have standing, we have no need to consider either the Navy’s motion to dismiss certain retired and former chaplains from the appeal for lack of standing or whether the organizational plaintiffs have standing to pursue their claims. Comcast Corp. v. FCC, 579 F.3d 1, 6 (D.C. Cir. 2009).
III.
We turn next to the district court’s denial of plaintiffs’ motion for a preliminary injunction. A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, Inc., 555 U.S.

13
7, 22 ( 2008). In order to obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. We review the district court’s ultimate decision to deny injunctive relief, as well as its weighing of the preliminary injunction factors, for abuse of discretion. Chaplaincy of Full Gospel Churches v. England, 454 F .3d 290, 297 (D.C. Cir. 2006). We review the district court’s legal conclusions de novo and its findings of fact for clear error. Serono Laboratories, Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir. 1998).
In this case, although the district court presumed the presence of irreparable harm because plaintiffs had alleged an Establishment Clause violation, it ultimately denied their motion for a preliminary injunction, concluding that they were unlikely to succeed on t he merits and that both the balance of equities and the public interest weighed against granting the injunction. As the Navy concedes, the district court correctly assumed that plaintiffs have demonstrated irreparable harm. Appellees’ Br. 44; see Chaplaincy of Full Gospel Churches, 454 F .3d at 303 ( “[W]here a m ovant alleges a violation of the Establishment Clause, this is sufficient, without more, to satisfy the irreparable harm prong for purposes of the preliminary injunction determination.”). Moreover, the Supreme Court has instructed that, in assessing the balance of equities and the public interest, we must “ ‘give great deference to the professional judgment of military authorities’ ” regarding the harm that would result to military interests if an injunction were granted. Winter, 555 U.S. at 24 (quoting Goldman v. Weinberger, 475 U.S. 503, 507 (1986)). This leaves the question of likelihood of success on the merits.

14
We begin with plaintiffs’ delegation theory—that the Navy impermissibly delegates governmental authority to religious entities by permitting chaplains to make promotion decisions without effective guarantees that the authority will be exercised in a secular manner. In support, plaintiffs cite Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), in which the Supreme Court held that a Massachusetts statute granting religious institutions an effective veto power over applications for liquor licenses violated the Establishment Clause because the delegated power was “standardless, calling for no reasons, findings, or reasoned conclusions” and because there were no “effective means of guaranteeing that the delegated power will be used exclusively for secular, neutral, and nonideological purposes.” Id. at 125; see also United Christian Scientists v. Christian Science Board of Directors, 829 F.2d 1152, 1170 –71 (D.C. Cir. 1987). Plaintiffs emphasize that they object not to the mere delegation of civic authority, but rather to the fact that such delegation is, as in Larkin, devoid of standards and procedural guarantees to ensure the neutral exercise of such power.
This case is a f ar cry from the “standardless” delegation scheme at issue in Larkin. Here, Congress and the Secretary of the Navy have articulated secular, neutral standards to guide selection board members in evaluating candidates for promotion. Specifically, board members are required by statute to recommend for promotion those officers they deem “best qualified for promotion within each competitive category considered by the board,” 10 U.S.C. § 616(a), and the Navy provides to each selection board specific “guidance relating to the needs of the Navy . . . f or officers with particular skills in each competitive category, and other information and guidelines as necessary to enable the board to perform its functions properly.” SECNAVINST 1420.1B,

15
¶ 13.d.(2). And unlike in Larkin, where the churches had final say over the liquor license applications, 459 U.S. at 125, here the two chaplains on t he selection boards share decisionmaking authority with five others, and the board’s promotion decisions are subject to further review by the Secretary of the Navy and the Secretary of Defense. 10 U.S.C. §§ 618(a)(1), (c)(1). We thus see no error in the district court’s conclusion that plaintiffs are unlikely to succeed on t he merits of their delegation theory.
We have a 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. As discussed above, plaintiffs contend that their statistical analysis provides strong evidence of a pattern of discrimination. For its part, the Navy challenges plaintiffs’ evidence and offers its own expert analysis that it c laims demonstrates that no such discrimination exists.
Unfortunately, the district court made no factual findings to resolve these competing claims. All it had to say about the issue was this: “the plaintiffs have submitted no evidence from which the court could assume that the future promotion boards will follow any putative pattern of alleged past discrimination.” In re Navy Chaplaincy, 841 F. Supp. 2d a t 346. But this is the wrong legal standard. Whether “future” promotion boards are likely to discriminate on the basis of religious denomination is, as we have explained, the question we ask to determine whether plaintiffs have Article III standing. The issue before us now—whether plaintiffs are likely to succeed on t he merits—turns on w hether they have made a strong showing of a pattern of past discrimination on the basis of religious denomination and whether that pattern is linked to the policies they challenge. Perhaps by saying that

16
plaintiffs had “submitted no e vidence from which the court could assume” future injury, id., the district court meant to say that plaintiffs’ evidence of a pattern of past discrimination, when considered in light of the Navy’s contrary evidence, was unpersuasive. Yet the district court never said so, much less explained why it reached any such conclusion. Under these circumstances, we have no f indings to review for clear error. See Lyles v. United States, 759 F.2d 941, 944 ( D.C. Cir. 1985) (“Where the trial court provides only conclusory findings, unsupported by subsidiary findings or by an explication of the court’s reasoning with respect to the relevant facts, a reviewing court simply is unable to determine whether or not those findings are clearly erroneous.”).
The Navy insists that the district court did make factual findings regarding plaintiffs’ showing of past discrimination. In support, it points to the court’s statement that “the evidence put forth by the plaintiffs at best establishes a colorable claim to relief under the Establishment Clause.” In re Navy Chaplaincy, 841 F. Supp. 2d a t 349. At oral argument, counsel for the Navy claimed that this amounts to an implicit factual finding to which we must defer unless clearly erroneous. Oral Arg. Rec. 34:05–34:32, 34:58–35:30; see Ellipso, Inc. v. Mann, 480 F.3d 1153, 1159 (D.C. Cir. 2007) (applying clear error review to implicit factual finding of district court in granting preliminary injunction). But the cited statement cannot fairly be read as a finding—implicit or otherwise—about the strength of plaintiffs’ showing of past discrimination. The 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 discrimination.

17
IV.
For the foregoing reasons, we reverse the district court’s determination that plaintiffs lack Article III standing to seek injunctive relief. We also vacate the district court’s denial of a preliminary injunction and remand for further proceedings consistent with this opinion.
So ordered.

 
 APPEAL,CLOSED,CONSOL
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:07−mc−00269−JDB

IN RE: NAVY CHAPLAINCY Assigned to: Judge John D. Bates Case: 1:19−cv−02755−JDB Case in other court: 07−05359
USCA, 12−05027 13−05071 USCA, 19−05204 USCA, 19−05206 Cause: 28:1331 Federal Question: Other Civil Rights In Re

Date Filed: 06/18/2007 Date Terminated: 04/02/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

NAVY CHAPLAINCY

represented by Matthew J.B. Lawrence U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20530 (202) 616−8105 Fax: (202) 616−8470 Email: matthew.lawrence@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
CHAPLAINCY OF FULL GOSPEL CHURCHES

represented by Arthur A. Schulcz , Sr. CHAPLAINS' COUNSEL (AKA LAW OFFICE OF ARTHUR A SCHULCZ) 21043 Honeycreeper Place Leesburg, VA 20175 (703) 645−4010 Fax: (703) 645−4011 Email: art@chaplainscounsel.com TERMINATED: 05/20/2015

Plaintiff
ROBERT DUANE PURSER Lieutenant Commander

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ROBERT H. ADAIR

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MICHAEL BELT

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GREGORY R. DE MARCO

represented by Arthur A. Schulcz , Sr. (See above for address)

Plaintiff FURNISS HARKNESS
Plaintiff MICHAEL LAVELLE
Plaintiff GEORGE W. LINZEY
Plaintiff TIMOTHY D. NALL
Plaintiff THOMAS RUSH
Plaintiff JAMES M. WEIBLING
Plaintiff JOHN WITHERSPOON
Plaintiff MICHAEL A. WRIGHT
Plaintiff WILLIAM C. BLAIR
Plaintiff LARRY FARRELL

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Plaintiff RAFAEL J. QUILES
Plaintiff LYLE SWANSON TERMINATED: 05/30/2018
Plaintiff RONALD TOMLIN TERMINATED: 11/19/2007
Plaintiff DAVID S. WILDER
Plaintiff MARTHA CARSON
Plaintiff MARK R. JOHNSTON
Plaintiff KLON K. KITCHEN, JR. TERMINATED: 05/30/2018
Plaintiff DENISE Y. MERRITT
Plaintiff DANIEL E. ROYSDEN

Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MARY HELEN SPALDING
Plaintiff DAVID L GIBSON
Plaintiff RICHARD L. ARNOLD
Plaintiff RAY A. BAILEY
Plaintiff GEORGE P. BYRUM
Plaintiff ASSOCIATED GOSPEL CHURCHES TERMINATED: 01/04/2017
Plaintiff ALL PLAINTIFFS TERMINATED: 06/18/2007
Plaintiff ALL GIBSON PLAINTIFFS
Plaintiff ALL ADAIR PLAINTIFFS
Plaintiff ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) TERMINATED: 01/04/2017 LEAD ATTORNEY
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff CYNTHIA PALMER PRINCE
Plaintiff BARBY EARL WILSON
V. Defendant UNITED STATES NAVY

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Evan Carmichael U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Washington, DC 20005 (202) 514−3346 Fax: (202) 616−8460 Email: andrew.e.carmichael@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chetan A. Patil U.S. DEPARTMENT OF JUSTICE Civil Division 1100 L Street, NW Room 12518 Washington, DC 20530 (202) 305−4968 Fax: (202) 616−8470 Email: chetan.patil@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher R. Hall U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW Room 7224 Washington, DC 20530 (202) 514−4778 Fax: (202) 616−8202 Email: christopher.hall@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric B. Beckenhauer U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Washington, DC 20005 202−514−3338 Fax: 202−616−8470 Email: eric.beckenhauer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kieran Gavin Gostin U.S. DEPARTMENT OF JUSTICE

Defendant
SECRETARY OF DEPARTMENT OF NAVY

Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20530 (202) 353−4556 Fax: (202) 616−8460 Email: kieran.g.gostin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J.B. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L St., N.W. Rm. 12028 Washington, DC 20005 (202) 305−0693 Fax: (202) 616−8460 Email: daniel.bensing@usdoj.gov TERMINATED: 01/04/2010
Michael Q. Hyde US DEPARTMENT OF JUSTICE Civil Division/Federal Programs Branch P.O. Box 883 Washington, DC 20044−0883 (202) 514−3338 Fax: (202) 616−8470 Email: michael.hyde@usdoj.gov TERMINATED: 02/02/2009
Thomas Edward Caballero OFFICE OF SENATE LEGAL COUNSEL United States Senate 642 Hart Senate Office Building United States Senate Washington, DC 20510 (202) 224−4435 Fax: (202) 224−3391 Email: thomas_caballero@legal.senate.gov TERMINATED: 08/18/2011
represented by Andrew Evan Carmichael (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chetan A. Patil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric B. Beckenhauer (See above for address)

Defendant
HANSFORD T. JOHNSON Secretary of the U.s. Navy

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kieran Gavin Gostin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J.B. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) TERMINATED: 01/04/2010
Michael Q. Hyde (See above for address) TERMINATED: 02/02/2009
Thomas Edward Caballero (See above for address) TERMINATED: 08/18/2011
represented by Andrew Evan Carmichael (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chetan A. Patil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric B. Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kieran Gavin Gostin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J.B. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) TERMINATED: 01/04/2010
Michael Q. Hyde (See above for address) TERMINATED: 02/02/2009

Defendant GERALD L. HOWEING Vice Admiral, Chief of Naval Personnel
Defendant LOUIS V. IASIELLO Rear Admiral, Chief of Chaplains

Thomas Edward Caballero (See above for address) TERMINATED: 08/18/2011
represented by Andrew Evan Carmichael (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chetan A. Patil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric B. Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kieran Gavin Gostin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J.B. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) TERMINATED: 01/04/2010
Michael Q. Hyde (See above for address) TERMINATED: 02/02/2009
Thomas Edward Caballero (See above for address) TERMINATED: 08/18/2011
represented by Andrew Evan Carmichael (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chetan A. Patil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric B. Beckenhauer

Defendant DEPUTY CHIEF OF CHAPLAINS

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kieran Gavin Gostin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J.B. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) TERMINATED: 01/04/2010
Michael Q. Hyde (See above for address) TERMINATED: 02/02/2009
Thomas Edward Caballero (See above for address) TERMINATED: 08/18/2011
represented by Andrew Evan Carmichael (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chetan A. Patil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric B. Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kieran Gavin Gostin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J.B. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) TERMINATED: 01/04/2010
Michael Q. Hyde (See above for address) TERMINATED: 02/02/2009

Defendant
BYRON HOLDERBY, JR. Rear Admiral, Chief of Chaplains

Thomas Edward Caballero (See above for address) TERMINATED: 08/18/2011
represented by Andrew Evan Carmichael (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chetan A. Patil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric B. Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kieran Gavin Gostin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J.B. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) TERMINATED: 01/04/2010
Michael Q. Hyde (See above for address) TERMINATED: 02/02/2009
Thomas Edward Caballero (See above for address) TERMINATED: 08/18/2011

Date Filed 06/18/2007 06/18/2007
07/09/2007

# Docket Text
CASE RELATED to CA 99−2945, 00−566, and 06−1696. (jeb, ) (Entered: 06/18/2007)
1 COPY OF MEMORANDUM ORDER denying Motion to Transfer Case in related actions; granting the defendants' motion to consolidate; denying all pending motions without prejudice in related actions; directing that CA 06−1696, CA 00−556, and CA 99−2945 be incorporated into this new miscellaneous case number, 07−269, and all further pleadings be filed in this case; parties may refile motions this Miscellaneous No 07mc269;administratively closing the related civil actions pending further order of the Court. Signed by Judge Ricardo M. Urbina on 06/18/07. (Original order filed in the related cases) (Entered: 06/18/2007)
2 MOTION for Reconsideration Order Denying Appeal of Magistrate Judge's Order in CFGC v. Winter and Adair v. Winter, MOTION for Protective Order Against

07/10/2007 07/16/2007 07/17/2007 07/17/2007 07/23/2007
07/25/2007
08/01/2007 08/01/2007 08/02/2007
09/21/2007 09/24/2007 10/01/2007

Discovery of Selective Early Retirement Board Deliberations by UNITED STATES NAVY, SECRETARY OF THE NAVY (Attachments: # 1 Text of Proposed Order # 2 Exhibit Exhibit 1# 3 Exhibit Exhibit 2# 4 Exhibit Exhibit 3# 5 Exhibit Exhibit 4)(Hyde, Michael) (Entered: 07/09/2007)
3 MOTION for Preliminary Injunction by ALL PLAINTIFFS (Attachments: # 1 Exhibit Ex 1# 2 Exhibit Ex 2# 3 Exhibit Ex 3# 4 Exhibit Ex 4# 5 Exhibit Ex 5# 6 Exhibit Ex 6# 7 Exhibit Ex 7# 8 Exhibit Ex 8# 9 Exhibit Ex 9# 10 Exhibit Ex 10# 11 Exhibit Ex 11# 12 Exhibit Ex 12# 13 Exhibit Ex 13# 14 Exhibit Ex 14# 15 Exhibit Ex 15# 16 Exhibit Ex 16# 17 Text of Proposed Order)(Schulcz, Arthur) (Entered: 07/10/2007)
4 Consent MOTION for Extension of Time to File Response/Reply for Three Days to Plaintiffs' Renewed Motion for a Preliminary Injunction by SECRETARY OF THE NAVY (Attachments: # 1 Text of Proposed Order)(Hyde, Michael) (Entered: 07/16/2007)
5 ORDER granting 4 Consent MOTION for Extension of Time to File Response/Reply for Three Days to Plaintiffs' Renewed Motion for a Preliminary Injunction. Responses due by 7/25/2007. Signed by Judge Ricardo M. Urbina on 07/17/07. (dbk) (Entered: 07/17/2007)
Set/Reset Deadlines: Responses due by 7/25/2007 (mpt, ) (Entered: 07/17/2007)
6 Memorandum in opposition to re 2 MOTION for Reconsideration Order Denying Appeal of Magistrate Judge's Order in CFGC v. Winter and Adair v. Winter MOTION for Protective Order Against Discovery of Selective Early Retirement Board Deliberations filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Text of Proposed Order)(Schulcz, Arthur) (Entered: 07/23/2007)
7 Memorandum in opposition to re 3 MOTION for Preliminary Injunction and Addressing Mandate of Court of Appeals filed by UNITED STATES NAVY, SECRETARY OF THE NAVY. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6# 7 Exhibit Exhibit 7# 8 Exhibit Exhibit 8# 9 Exhibit Exhibit 9# 10 Exhibit Exhibit 10# 11 Exhibit Exhibit 11# 12 Exhibit Exhibit 12# 13 Exhibit Exhibit 13# 14 Exhibit Exhibit 14# 15 Exhibit Exhibit 15# 16 Exhibit Exhibit 16# 17 Exhibit Exhibit 17# 18 Exhibit Exhibit 18# 19 Exhibit Exhibit 19# 20 Exhibit Exhibit 20# 21 Exhibit Exhibit 21# 22 Exhibit Exhibit 22# 23 Exhibit Exhibit 23# 24 Exhibit Exhibit 24# 25 Exhibit Exhibit 25# 26 Exhibit Exhibit 26# 27 Exhibit Table of Exhibits# 28 Text of Proposed Order)(Hyde, Michael) (Entered: 07/25/2007)
8 REPLY to opposition to motion re 3 MOTION for Preliminary Injunction filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Schulcz, Arthur) (Entered: 08/01/2007)
9 ERRATA re Exhibit 6 by ALL PLAINTIFFS 6 Memorandum in Opposition, filed by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 08/01/2007)
10 REPLY to opposition to motion re 2 MOTION for Reconsideration Order Denying Appeal of Magistrate Judge's Order in CFGC v. Winter and Adair v. Winter MOTION for Protective Order Against Discovery of Selective Early Retirement Board Deliberations filed by UNITED STATES NAVY, SECRETARY OF THE NAVY. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Hyde, Michael) (Entered: 08/02/2007)
11 Joint MOTION to Amend/Correct Stay Pending Appeal in Gibson v. United States Navy by UNITED STATES NAVY, SECRETARY OF THE NAVY (Attachments: # 1 Text of Proposed Order)(Hyde, Michael) (Entered: 09/21/2007)
12 ORDER signed by Judge Ricardo M. Urbina on September 24, 2007, granting 11 Parties Joint Motion to Amend/Correct Stay Pending Appeal and directing that the deadline in Gibson v. United States Navy, No 1:06cv1696, for defendants to respond to the Compalint is postpond until further order of the Court. (jwd) (Entered: 09/24/2007)
13 MEMORANDUM OPINION 2 Motion for Reconsideration; granting 2 Motion for Protective Order. Signed by Judge Ricardo M. Urbina on 10/01/07. (lcrmu1, )

10/01/2007 10/01/2007 10/15/2007 10/15/2007 10/25/2007
10/26/2007 11/01/2007
11/17/2007 11/19/2007 07/03/2008 07/03/2008
07/16/2008 07/17/2008

Modified on 10/1/2007 (lcrmu1, ). (Entered: 10/01/2007)
14 ORDER. Signed by Judge Ricardo M. Urbina on 10/01/07. (lcrmu1, ) (Entered: 10/01/2007)
NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry No 13 corrected to read MEMORANDUM OPINION.(jwd) (Entered: 10/01/2007)
15 ORDER denying 3 Motion for Preliminary Injunction. Signed by Judge Ricardo M. Urbina on 10/15/07. (lcrmu1, ) (Entered: 10/15/2007)
16 MEMORANDUM AND OPINION. Signed by Judge Ricardo M. Urbina on 10/15/07. (lcrmu1, ) (Entered: 10/15/2007)
17 NOTICE OF INTERLOCUTORY APPEAL by GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, LYLE SWANSON, DAVID S. WILDER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN, MARY HELEN SPALDING, DAVID L GIBSON, RICHARD L. ARNOLD, RAY A. BAILEY, GEORGE P. BYRUM, ROBERT DUANE PURSER, ASSOCIATED GOSPEL CHURCHES, ROBERT H. ADAIR, MICHAEL BELT RE: (17) Order denying motion for Preliminary Injunction. Filing fee $ 455, receipt number 1325359. Fee Status: Fee Paid. Parties have been notified. (Schulcz, Arthur). Modified on 10/25/2007 to include the word INTERLOCUTORY. (Obrien, Peggy). (Entered: 10/25/2007)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 17 Notice of Appeal,,, (jf, ) (Entered: 10/26/2007)
USCA Case Number 07−5359 for 17 Notice of Appeal,,, filed by MARY HELEN SPALDING, JOHN WITHERSPOON, DANIEL E. ROYSDEN, KLON K. KITCHEN, JR., WILLIAM C. BLAIR, THOMAS RUSH, MICHAEL BELT, RICHARD L. ARNOLD, DAVID L GIBSON, ASSOCIATED GOSPEL CHURCHES, MICHAEL LAVELLE, MARK R. JOHNSTON, ROBERT H. ADAIR, JAMES M. WEIBLING, DENISE Y. MERRITT, DAVID S. WILDER, GEORGE P. BYRUM, CHAPLAINCY OF FULL GOSPEL CHURCHES, LARRY FARRELL, ROBERT DUANE PURSER, TIMOTHY D. NALL, FURNISS HARKNESS, LYLE SWANSON, GREGORY R. DE MARCO, RAY A. BAILEY, GEORGE W. LINZEY, MICHAEL A. WRIGHT, MARTHA CARSON, RAFAEL J. QUILES. (jf, ) (Entered: 11/02/2007)
18 Joint MOTION for Order Dropping Adair Plaintiff R. Tomlin by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 11/17/2007)
MINUTE ORDER granting 18 Motion for Order to drop plaintiff Tomlin. Signed by Judge Ricardo M. Urbina on 11/19/07. (lcrmu1, ) (Entered: 11/19/2007)
19 Joint MOTION to Lift Stay and Status Report by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 07/03/2008)
MINUTE ORDER granting 19 Motion to Lift Stay. Before the Court is the Joint Motion by the parties to lift the stay in Gibson v. U.S. Navy, 06−cv−1696, which the Court has consolidated into In re Navy Chaplaincy. The Court GRANTS the parties motion and lifts the stay so that the parties may advance this case. It is further ORDERED that within 15 days the parties shall provide the Court a proposed schedule to address further motions and defendants response to the Gibson Complaint. Signed by Judge Ricardo M. Urbina on 7/3/08. (lcrmu1, ) (Entered: 07/03/2008)
20 Joint MOTION for Order Setting Briefing Schedule by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 07/16/2008)
MINUTE ORDER granting 20 the parties' joint motion for an order setting a briefing schedule. The court orders the following briefing schedule: plaintiffs may move to alter or amend portions of the Court's 1/10/02 Order, see Adair v. England, 183 F.Supp.2d 31 (D.D.C. 2002), under Fed. R. Civ. P. 54(b), or in the alternative, for

07/18/2008 07/18/2008 08/18/2008
08/29/2008 09/16/2008

entry of a final judgment on the dismissed claims under Fed. R. Civ. P. 54(b) (the "Rule 54 Motion") on or before 7/18/08; Gibson plaintiffs may file an amended Complaint under Fed. R. Civ. P. 15(a) on or before 8/18/08; Chaplaincy of Full Gospel Churches v. Winter and Adair v. Winter ("CFGC/Adair") plaintiffs may move to amend their Complaints under Fed. R. Civ. P. 15(b) on or before 8/18/08; defendants may file their opposition to plaintiffs' Rule 54 Motion on or before 8/29/08; defendants may file an opposition to the CFGC/Adair plaintiffs' motion to amend their Complaint on or before 9/19/08; plaintiffs may file their reply to defendants' opposition to plaintiffs' Rule 54 motion on or before 9/22/08; plaintiffs may file their reply to defendants' opposition to CFGC/Adair's motion to amend their Complaint on or before 10/15/08; defendants may file their response to the amended Gibson Complaint on or before 10/17/08; if defendants file a motion in response to the amended Gibson Complaint, plaintiffs may file their opposition on or before 11/19/08; and if defendants file a motion in response to the amended Gibson Complaint, defendants may file their reply to plaintiff's opposition on or before 12/19/08. Signed by Judge Ricardo M. Urbina on 7/17/08. (lcrmu1, ) (Entered: 07/17/2008)
Set/Reset Deadlines: Final Judgment on or before 7/18/08; Gibson plaintiffs amended complaint 8/18/08; defendants file opposition to plaintiffs 54 motion due by 8/29/08; defendants may file opposition to CFGC/Adair motion to amend complaint on or before 9/19/08; plaintiff's fiel their reply to defendant's opposition to plaintiff's 54 motion on or before 9/22/08; plaintiffs may file their reply to defendant's opposition to CFGC/Adair motion to amend their complaint on or before 10/15/08; defendants may their response to amended Gibson complaint on or before 10/17/08; plaintiffs may file their opposition on or before 11/19/08; defendants file a motion in response to to amend Gibson complaint, defendants may file their reply to plaintiffs opposition on or before 12/19/08;(mpt, ) (Entered: 07/18/2008)
21 MOTION to Amend/Correct Interloctory Order by ALL PLAINTIFFS (Attachments: # 1 Exhibit Ex 1, # 2 Exhibit Ex 2, # 3 Exhibit Ex 3, # 4 Exhibit Ex 4, # 5 Exhibit Ex 5, # 6 Exhibit Ex 6, # 7 Exhibit Ex 7, # 8 Exhibit Ex 8, # 9 Exhibit Ex 9, # 10 Exhibit Ex 10, # 11 Exhibit Ex 11, # 12 Exhibit Ex 12, # 13 Exhibit Ex 13, # 14 Exhibit Ex 13 App G, # 15 Exhibit Ex 13 App K, # 16 Exhibit Ex 13 App M, # 17 Exhibit Ex 13 App N, # 18 Exhibit Ex 14, # 19 Exhibit Ex 15, # 20 Exhibit Ex 16, # 21 Exhibit Ex 17, # 22 Exhibit Ex 18, # 23 Exhibit Ex 19, # 24 Exhibit Ex 20, # 25 Exhibit Ex 21, # 26 Exhibit Ex 22, # 27 Exhibit Ex 23, # 28 Exhibit Ex 24, # 29 Exhibit 25, # 30 Exhibit Ex 26, # 31 Exhibit Ex 27, # 32 Exhibit Ex 28, # 33 Exhibit Ex 29, # 34 Exhibit Ex 30, # 35 Exhibit Ex 31, # 36 Exhibit Exhibit list, # 37 Text of Proposed Order)(Schulcz, Arthur) (Entered: 07/18/2008)
22 First AMENDED COMPLAINT against UNITED STATES NAVY, SECRETARY OF THE NAVY filed by GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN, MARY HELEN SPALDING, DAVID L GIBSON, RICHARD L. ARNOLD, RAY A. BAILEY, GEORGE P. BYRUM, ROBERT DUANE PURSER, ASSOCIATED GOSPEL CHURCHES, ROBERT H. ADAIR, ALL PLAINTIFFS, MICHAEL BELT. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22)(tr, ) (Entered: 08/19/2008)
23 Memorandum in opposition to re 21 MOTION to Amend/Correct Interloctory Order filed by UNITED STATES NAVY, SECRETARY OF THE NAVY. (Attachments: # 1 Exhibit Ex 1, # 2 Exhibit Ex 2, # 3 Exhibit Ex 3, # 4 Exhibit Ex 4, # 5 Exhibit Ex 5, # 6 Exhibit Ex 6, # 7 Exhibit Ex 7, # 8 Exhibit Ex 8, # 9 Text of Proposed Order)(Hyde, Michael) (Entered: 08/29/2008)
24 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion to Amend Complaint by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V.

09/17/2008
09/17/2008 09/22/2008
10/08/2008 10/09/2008
10/09/2008 11/10/2008 11/10/2008 11/14/2008

IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 09/16/2008)
MINUTE ORDER granting 24 the defendants' unopposed motion for extension of briefing deadlines regarding plaintiffs' motion to amend complaint. The briefing schedule with respect to the Plaintiffs' motion to amend their complaints in Chaplaincy of Full Gospel Churches v. Winter and Adair v. Winter is amended as follows: the defendants' opposition to the plaintiffs' motion to amend complaint shall be filed on or before 10/10/2008; and the plaintiffs' reply in support of their motion to amend complaint shall be filed on or before 11/10/2008. The court notes with disapproval the defendants' failure to comply with the court's standing order. Specifically, the standing order directs that motions for extension of time shall be filed at least four business days prior to the deadline the motion is seeking to extend. See Standing Order paragraph 5. The court will not entertain any further motions for extension of time that do not comply with the standing order. Signed by Judge Ricardo M. Urbina on 09/17/2008. (lcrmu1) (Entered: 09/17/2008)
Set/Reset Deadlines/Hearings: the defendants' opposition to the plaintiffs' motion to amend complaint shall be filed on or before 10/10/2008; and the plaintiffs' reply in support of their motion to amend complaint shall be filed on or before 11/10/2008. (jwd) (Entered: 09/17/2008)
25 REPLY to opposition to motion re 21 MOTION to Amend/Correct Interloctory Order filed by GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, LYLE SWANSON, DAVID S. WILDER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN, MARY HELEN SPALDING, ROBERT DUANE PURSER, ROBERT H. ADAIR, MICHAEL BELT. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Declaration D, # 5 Exhibit E, # 6 Exhibit F)(Schulcz, Arthur) (Entered: 09/22/2008)
26 Unopposed MOTION for Extension of Time to File Answer re 22 Amended Complaint,,,, or Otherwise Respond by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 10/08/2008)
MINUTE ORDER. Upon consideration of 26 the defendants' unopposed motion for extension of briefing deadlines as to the plaintiffs' first amended complaint in Gibson v. Winter, and good cause having been shown, it is hereby ORDERED that the briefing schedule is amended as follows: the defendants' answer or dispositive motion in response to the plaintiffs' first amended complaint shall be filed on or before 11/14/2008; the plaintiffs' opposition to any dispositive motion shall be filed on or before 12/15/2008; and the defendants' reply in support of any dispositive motion shall be filed on or before 01/16/2009. SO ORDERED. Signed by Judge Ricardo M. Urbina on 10/09/2008. (lcrmu1) (Entered: 10/09/2008)
Set/Reset Deadlines/Hearings: he defendants' answer or dispositive motion in response to the plaintiffs' first amended complaint shall be filed on or before 11/14/2008; the plaintiffs' opposition to any dispositive motion shall be filed on or before 12/15/2008; and the defendants' reply in support of any dispositive motion shall be filed on or before 01/16/2009. (jwd) (Entered: 10/09/2008)
27 REPLY to opposition to motion re 20 Joint MOTION for Order Setting Briefing Schedule Opposition to Amend Comaplaint filed by ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS. (Schulcz, Arthur) (Entered: 11/10/2008)
28 REPLY to opposition to motion re 20 Joint MOTION for Order Setting Briefing Schedule Adair Reply to Opp to Amend Comaplaint filed by ALL ADAIR PLAINTIFFS. (Schulcz, Arthur) (Entered: 11/10/2008)
29 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim and Motion for Judgment on the Pleadings by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V.

12/08/2008 12/09/2008 12/10/2008
12/10/2008 12/22/2008 12/23/2008
12/30/2008 12/30/2008
12/31/2008

IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F)(Hall, Christopher) (Entered: 11/14/2008)
30 Unopposed MOTION for Extension of Time to File Response/Reply to Defendants' Partial Motion to Dismiss & Motion for Judgment on Pleadings by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 12/08/2008)
31 MANDATE of USCA (certified copy) affirming the judgment of the District Court as to 17 Notice of Appeal filed by MARY HELEN SPALDING, et al. (Attachments: # 1 USCA Opinion)(jeb, ) (Entered: 12/15/2008)
MINUTE ORDER granting 30 the plaintiffs' consent motion to extend briefing deadlines as to the plaintiffs' opposition and response to defendants' partial motion to dismiss and motion for judgment on the pleadings in Gibson v. Winter. The briefing schedule with respect to the plaintiffs' first amended complaint and the defendants' response thereto is hereby amended as follows: the plaintiffs' opposition and any dispositive motion in response to the defendants' partial motion to dismiss and judgment on the pleadings shall be filed on or before 12/30/2008; the defendants' reply in support of their partial motion to dismiss and judgment on the pleadings and opposition to any plaintiffs' dispositive motion shall be filed on or before 01/30/2009; the plaintiffs' reply in support of any dispositive motion shall be filed on or before 03/02/2009. SO ORDERED. Signed by Judge Ricardo M. Urbina on 12/10/2008. (lcrmu1) (Entered: 12/10/2008)
Set/Reset Deadlines/Hearings: Defendants' partial motion to dismiss and judgment on the pleadings shall be filed on or before 12/30/2008; the defendants' reply in support of their partial motion to dismiss and judgment on the pleadings and opposition to any plaintiffs' dispositive motion shall be filed on or before 01/30/2009; the plaintiffs' reply in support of any dispositive motion shall be filed on or before 03/02/2009. (jwd, ) (Entered: 12/10/2008)
32 Unopposed MOTION for Extension of Time to Move for Class Certification by ALL GIBSON PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 12/22/2008)
MINUTE ORDER granting 32 the plaintiffs' unopposed motion for an order extending plaintiffs' time for filing a motion for class certification. It is hereby ORDERED that the plaintiffs' time for filing their motion for class certification is extended until after the court rules on the defendants' pending motion to dismiss and/or judgment on the pleadings in Gibson v. U.S. Navy; and it is FURTHER ORDERED that, if the court denies in whole or in part the defendants' motion, the parties shall file a briefing schedule addressing the plaintiffs' class certification motion within 14 days after the court's order denying the motion. SO ORDERED. Signed by Judge Ricardo M. Urbina on 12/23/2008. (lcrmu1) (Entered: 12/23/2008)
33 Memorandum in opposition to re 29 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim and Motion for Judgment on the Pleadings filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Text of Proposed Order)(Schulcz, Arthur) (Entered: 12/30/2008)
34 MOTION for Partial Summary Judgment by ALL PLAINTIFFS (Attachments: # 1 Statement of Facts, # 2 Exhibit list, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Appendix G to Ex 13, # 17 Appendix K to Ex 13, # 18 Appendix M to Ex 13, # 19 Appendix N to Ex 13, # 20 Exhibit 14, # 21 Exhibit 15, # 22 Exhibit 16, # 23 Exhibit 17, # 24 Exhibit 18, # 25 Exhibit 19, # 26 Exhibit 20, # 27 Exhibit 21, # 28 Exhibit 22, # 29 Exhibit 23, # 30 Exhibit 24, # 31 Exhibit 25, # 32 Exhibit 26, # 33 Exhibit 27, # 34 Exhibit 28, # 35 Exhibit 29, # 36 Exhibit 30, # 37 Exhibit 31, # 38 Exhibit 32, # 39 Text of Proposed Order)(Schulcz, Arthur) (Entered: 12/30/2008)
35 ERRATA Exhibit 32 by ALL GIBSON PLAINTIFFS, ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS 34 MOTION for Partial Summary

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Judgment filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 32 corrected)(Schulcz, Arthur) (Entered: 12/31/2008)
36 Unopposed MOTION for Extension of Time to File Response/Reply as to 34 MOTION for Partial Summary Judgment by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 01/26/2009)
MINUTE ORDER granting the defendants' consent motion 36 for extension of briefing deadlines as to the plaintiffs' motion for partial summary judgment. The briefing schedule is hereby amended as follows: the defendants' opposition to the plaintiffs' motion for partial summary judgment and cross−motion for summary judgment shall be filed on or before 04/01/2009; the plaintiffs' reply in support of their motion for partial summary judgment and opposition to the defendants' cross−motion for summary judgment shall be filed on or before 05/04/2009; and the defendants' reply in support of their cross−motion for summary judgment, if any, shall be filed on or before 06/03/2009. SO ORDERED. Signed by Judge Ricardo M. Urbina on 01/28/2009. (lcrmu1) (Entered: 01/28/2009)
Set/Reset Deadlines/Hearings: The defendants' opposition to the plaintiffs' motion for partial summary judgment and cross−motion for summary judgment shall be filed on or before 04/01/2009; the plaintiffs' reply in support of their motion for partial summary judgment and opposition to the defendants' cross−motion for summary judgment shall be filed on or before 05/04/2009; and the defendants' reply in support of their cross−motion for summary judgment, if any, shall be filed on or before 06/03/2009. (jwd ) (Entered: 01/29/2009)
37 MEMORANDUM OPINION in case 1:07−mc−00269−RMU; granting (202) the plaintiffs' motion to amend in case 1:00−cv−00566−RMU; granting (262) the plaintiffs' motion to amend in case 1:99−cv−02945−RMU. Signed by Judge Ricardo M. Urbina on 01/30/2009. (lcrmu1) Modified on 1/30/2009 (jwd, ). Modified on 1/30/2009 (jwd, ). (Entered: 01/30/2009)
NOTICE OF CORRECTED DOCKET ENTRY: re docket entry 37 has been corrected to read "Memorandum Opinion." (jwd ) (Entered: 01/30/2009)
38 ORDER in case 1:07−mc−00269−RMU; granting (202) the plaintiffs' motion to amend in case 1:00−cv−00566−RMU; granting (262) the plaintiffs' motion to amend in case 1:99−cv−02945−RMU. Signed by Judge Ricardo M. Urbina on 01/30/2009. (lcrmu1) (Entered: 01/30/2009)
39 REPLY to opposition to motion re 29 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim and Motion for Judgment on the Pleadings filed by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR. (Attachments: # 1 Exhibit Ex. A Kagle Decl., # 2 Exhibit Ex. B Smith Decl.)(Hall, Christopher) (Entered: 01/30/2009)
40 NOTICE OF WITHDRAWAL OF APPEARANCE as to UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR. Attorney Thomas Edward Caballero and Michael Q. Hyde terminated. (Hall, Christopher) (Entered: 02/02/2009)
41 NOTICE of Appearance by Eric B. Beckenhauer on behalf of all defendants (Beckenhauer, Eric) (Entered: 02/02/2009)
42 MOTION to Amend/Correct Court's 8/17/00 standing decision and order by CHAPLAINCY OF FULL GOSPEL CHURCHES (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Text of Proposed Order)(Schulcz, Arthur) (Entered: 02/15/2009)
43 Memorandum in opposition to re 42 MOTION to Amend/Correct Court's 8/17/00 standing decision and order filed by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V.

03/09/2009 03/26/2009 03/30/2009
03/30/2009 05/29/2009 05/29/2009 05/30/2009
06/30/2009

IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR. (Hall, Christopher) (Entered: 03/02/2009)
44 REPLY to opposition to motion re 42 MOTION to Amend/Correct Court's 8/17/00 standing decision and order filed by CHAPLAINCY OF FULL GOSPEL CHURCHES. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Schulcz, Arthur) (Entered: 03/09/2009)
45 Unopposed MOTION for Extension of Time to File Response/Reply as to 34 MOTION for Partial Summary Judgment and Motion to Extend Briefing Deadlines by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 03/26/2009)
MINUTE ORDER granting 45 the defendants' unopposed motion to extend briefing deadlines as to the plaintiffs' motion for partial summary judgment. It is hereby ORDERED that the briefing deadlines are reset as follows: the defendants' opposition to the plaintiffs' motion for partial summary judgment and the defendants' cross−motion for summary judgment shall be filed on or before 05/29/2009; the plaintiffs' reply in support of their motion for partial summary judgment and opposition to the defendants' cross−motion for summary judgment shall be filed on or before 07/20/2009; and the defendants' reply in support of their cross−motion for summary judgment shall be filed on or before 09/04/2009. SO ORDERED. Signed by Judge Ricardo M. Urbina on 03/30/2009. (lcrmu1) (Entered: 03/30/2009)
Set/Reset Deadlines/Hearings: Defendants' opposition to the plaintiffs' motion for partial summary judgment and the defendants' cross−motion for summary judgment shall be filed on or before 05/29/2009; the plaintiffs' reply in support of their motion for partial summary judgment and opposition to the defendants' cross−motion for summary judgment shall be filed on or before 07/20/2009; and the defendants' reply in support of their cross−motion for summary judgment shall be filed on or before 09/04/2009. (jwd ) (Entered: 03/30/2009)
46 MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Partial Summary Judgment by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Table of Exhibits, # 4 Response to Plaintiffs' Statement of Facts, # 5 Text of Proposed Order)(Hall, Christopher) (Entered: 05/29/2009)
48 Memorandum in opposition to re 34 MOTION for Partial Summary Judgment filed by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR. (See docket Entry 46 to view document)(rdj) (Entered: 06/04/2009)
47 ERRATA Exhibits in Support of 46 Defendants' Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Partial Summary Judgment by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35)(Hall, Christopher) (Entered: 05/30/2009)
49 Unopposed MOTION for Extension of Time to File Response/Reply as to 46 MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Partial Summary Judgment, 34 MOTION for Partial Summary Judgment by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 06/30/2009)

07/06/2009
07/07/2009
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08/18/2009

MINUTE ORDER granting 49 the plaintiffs' consent motion for a revised briefing schedule. The court hereby orders the following revised briefing schedule: the plaintiffs' reply to the defendants' opposition to the plaintiffs' motion for partial summary judgment shall be filed on or before 08/03/2009; the plaintiffs' opposition to the defendants' motion for summary judgment, the plaintiffs' Fed. R. Civ. P. 56(f) motion and any cross−motion(s) shall be filed on or before 08/17/2009; the defendants' reply in support of their motion for summary judgment and opposition to the plaintiffs' Rule 56(f) motion and cross−motion(s), if any, shall be filed on or before 10/09/2009; and the plaintiffs' reply to the defendants' opposition(s) shall be filed on or before 10/26/2009. SO ORDERED. Signed by Judge Ricardo M. Urbina on 07/06/2009. (lcrmu1) (Entered: 07/06/2009)
Set/Reset Deadlines: Any Cross Motions are due on or before 8/17/2009. Oppositions to Cross Motions are due on or before 10/9/2009. Replies to Cross Motions are due on or before 10/26/2009. Plaintiffs' Opposition to Dispositive Motion is due on or before 8/17/2009. Defendants' Reply to Opposition to Dispositive Motion is due on or before 10/9/2009. Plaintiffs' Reply to Opposition to Motion for Partial Summary Judgment is due on or before 8/3/2009. PLaintiffs' Rule 56(f)Motion is due on or before 8/17/2009. Defendants' Opposition to Rule 56(f) Motion is due on or before 10/9/2009. Plaintiffs' Reply to Opposition to Rule 56(f) Motion is due on or before 10/26/2009. (tg, ) (Entered: 07/07/2009)
50 REPLY to opposition to motion re 34 MOTION for Partial Summary Judgment filed by ALL ADAIR PLAINTIFFS. (Attachments: # 1 Statement of Facts Reply to Def's' Response to Facts, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R)(Schulcz, Arthur) (Entered: 08/03/2009)
51 MOTION for Order to Strike Defendants' Motion for Summary Judgment by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Schulcz, Arthur) (Entered: 08/10/2009)
52 ERRATA by ALL GIBSON PLAINTIFFS, ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS 51 MOTION for Order to Strike Defendants' Motion for Summary Judgment filed by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 08/11/2009)
53 Memorandum in opposition to re 51 MOTION for Order to Strike Defendants' Motion for Summary Judgment filed by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR. (Hall, Christopher) (Entered: 08/14/2009)
54 REPLY to opposition to motion re 51 MOTION for Order to Strike Defendants' Motion for Summary Judgment filed by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 08/15/2009)
55 MOTION for Partial Summary Judgment by ALL PLAINTIFFS (Attachments: # 1 Statement of Facts, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42, # 44 Exhibit 43, # 45 Exhibit 44, # 46 Exhibit 44, # 47 Exhibit 46, # 48 Exhibit 47, # 49 Exhibit 48, # 50 Exhibit 49, # 51 Exhibit 50, # 52 Exhibit App K to Ex 50, # 53 Exhibit App M to Ex 50, # 54 Exhibit 51, # 55 Exhibit 52, # 56 Exhibit 53, # 57 Exhibit 54, # 58 Exhibit 55, # 59 Text of Proposed Order)(Schulcz, Arthur) (Entered: 08/16/2009)
56 Memorandum in opposition to re 46 MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit Tab A to Ex 5, # 7 Exhibit Tab B to Ex 5, # 8 Text of Proposed

08/18/2009 08/18/2009 08/18/2009 09/03/2009 09/04/2009 09/17/2009 09/18/2009 09/24/2009 09/24/2009 09/30/2009
10/01/2009
10/05/2009

Order)(Schulcz, Arthur) (Entered: 08/18/2009)
57 MOTION for Order under Rule 56(f) by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1, # 2 Exhibit, # 3 Exhibit Tab 8 to Ex 1, # 4 Text of Proposed Order)(Schulcz, Arthur) (Entered: 08/18/2009)
58 ERRATA by ALL GIBSON PLAINTIFFS, ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS 56 Memorandum in Opposition, filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 5, # 2 Exhibit Tab A to Ex 5, # 3 Exhibit Tab B to Ex 5)(Schulcz, Arthur) (Entered: 08/18/2009)
59 Unopposed MOTION for Extension of Time to File Response/Reply as to 57 MOTION for Order under Rule 56(f) and Opposition 56 by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 08/18/2009)
60 MOTION for Order To Allow Supplement to Motion to Strike by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 09/03/2009)
61 ERRATA by ALL GIBSON PLAINTIFFS, ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS 56 Memorandum in Opposition, filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1)(Schulcz, Arthur) (Entered: 09/04/2009)
62 Memorandum in opposition to re 60 MOTION for Order To Allow Supplement to Motion to Strike filed by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR. (Beckenhauer, Eric) (Entered: 09/17/2009)
63 WITHDRAWN.....Unopposed MOTION for Extension of Time to File Response/Reply as to 60 MOTION for Order To Allow Supplement to Motion to Strike by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) Modified on 9/24/2009 (ztg, ). (Entered: 09/18/2009)
64 REPLY to opposition to motion re 60 MOTION for Order To Allow Supplement to Motion to Strike filed by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 09/24/2009)
65 WITHDRAWAL of Motion by ALL PLAINTIFFS re 63 Unopposed MOTION for Extension of Time to File Response/Reply as to 60 MOTION for Order To Allow Supplement to Motion to Strike filed by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 09/24/2009)
66 Unopposed MOTION for Extension of Time to File Response/Reply as to 57 MOTION for Order under Rule 56(f), 55 MOTION for Partial Summary Judgment by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 09/30/2009)
MINUTE ORDER granting 66 the defendants' consent motion for extension of briefing deadlines. The court notes that professional commitments do not, as a matter of course, constitute good cause for an extension. Graham v. Pa. R.R., 342 F.2d 914, 915 (D.C. Cir. 1964). Nonetheless, because the defendants have shown good cause for a brief extension of the deadlines, it is hereby ORDERED that the defendants' opposition to the plaintiffs' second motion for partial summary judgment, opposition to motion for order under Rule 56(f), and reply in support of the defendants' cross−motion for summary judgment shall be filed on or before 11/06/2009; and is it FURTHER ORDERED that the plaintiffs' reply in support of their second motion for partial summary judgment and reply in support of their motion for order under Rule 56(f) shall be filed on or before 11/30/2009; and it is ORDERED that 59 the plaintiffs' consent motion for extension is hereby GRANTED. SO ORDERED. Signed by Judge Ricardo M. Urbina on 10/01/2009. (lcrmu1) (Entered: 10/01/2009)
Set/Reset Deadlines: Defendants' Opposition to Second Motion for Partial Summary Judgment and Opposition for Order under Rule 56(f) are due on or before 11/6/2009. Reply in support to Cross−Motion for Summary Judgment is due on or before 11/6/2009. Plaintiffs' Reply in support of second Motion for Summary Judgment and Reply in support of Motion for Order under Rule 56(f) are due on or before

11/05/2009 11/06/2009
11/06/2009 11/30/2009 12/01/2009 12/01/2009 12/02/2009 12/21/2009 12/22/2009 12/31/2009 01/04/2010 01/08/2010
01/08/2010

11/30/2009. (tg, ) (Entered: 10/05/2009)
67 Memorandum in opposition to re 57 MOTION for Order under Rule 56(f) filed by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR. (Hall, Christopher) (Entered: 11/05/2009)
68 REPLY to opposition to motion re 46 MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Partial Summary Judgment and OPPOSITION to 55 Plaintiffs' Second Motion for Partial Summary Judgment filed by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR. (Attachments: # 1 Table of Exhibits, # 2 Exhibit 36, # 3 Exhibit 37, # 4 Exhibit 38, # 5 Exhibit 39, # 6 Exhibit 40, # 7 Exhibit 41, # 8 Exhibit 42, # 9 Exhibit 43, # 10 Exhibit 44)(Beckenhauer, Eric) (Entered: 11/06/2009)
69 RESPONSE to Plaintiff's Statement of Material Facts filed by UNITED STATES NAVY, SECRETARY OF THE NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR. (Hall, Christopher) (Entered: 11/06/2009)
70 REPLY to opposition to motion re 55 MOTION for Partial Summary Judgment filed by ALL PLAINTIFFS. (Attachments: # 1 Statement of Facts In Reply, # 2 Exhibit 56, # 3 Exhibit 57, # 4 Exhibit 58, # 5 Exhibit 59)(Schulcz, Arthur) (Entered: 11/30/2009)
71 REPLY to opposition to motion re 57 MOTION for Order under Rule 56(f) filed by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 12/01/2009)
72 Unopposed MOTION for Extension of Time to File Response/Reply to Opposition to Rule 56(f) Motion by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 12/01/2009)
MINUTE ORDER. The plaintiffs' 72 consent motion for extension of time to file their reply in support of their Rule 56(f) motion is hereby GRANTED. SO ORDERED. Signed by Judge Ricardo M. Urbina on 12/02/2009. (lcrmu1) (Entered: 12/02/2009)
73 MOTION to Strike Defendants' Expert Testimony by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Text of Proposed Order)(Schulcz, Arthur) (Entered: 12/22/2009)
74 ERRATA to Plaintiffs' Motion to Strike by ALL PLAINTIFFS 73 MOTION to Strike Defendants' Expert Testimony filed by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 12/22/2009)
75 Consent MOTION for Extension of Time to File Response/Reply as to 73 MOTION to Strike Defendants' Expert Testimony by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Beckenhauer, Eric) (Entered: 12/31/2009)
76 NOTICE OF WITHDRAWAL OF APPEARANCE as to DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY. Attorney Daniel Edward Bensing terminated. (Bensing, Daniel) (Entered: 01/04/2010)
MINUTE ORDER granting 75 the defendants' consent motion for extension of time. It is hereby ORDERED that the defendants' opposition to the plaintiffs' motion to strike shall be filed on or before 02/05/2010; and it is FURTHER ORDERED that the plaintiffs' reply in support of their motion to strike shall be filed on or before 03/01/2010. SO ORDERED. Signed by Judge Ricardo M. Urbina on 01/08/2010. (lcrmu1) (Entered: 01/08/2010)
Set/Reset Deadlines: Defendants' Opposition to Motion to Strike due on or before 2/5/2010. Plaintiffs' Reply is due on or before 3/1/2010. (tg, ) (Entered: 01/08/2010)

01/28/2010 02/05/2010
03/01/2010 03/02/2010 09/07/2010 09/07/2010 10/06/2010 10/06/2010 10/06/2010 11/09/2010 11/10/2010 11/11/2010 11/16/2010 02/21/2011
03/11/2011

77 NOTICE OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Schulcz, Arthur) (Entered: 01/28/2010)
78 Memorandum in opposition to re 73 MOTION to Strike Defendants' Expert Testimony filed by BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10)(Hall, Christopher) (Entered: 02/05/2010)
79 REPLY to opposition to motion re 73 MOTION to Strike Defendants' Expert Testimony filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 18, # 2 Exhibit Exhibits to Ex 18, # 3 Exhibit Data File to Ex 18, # 4 Exhibit 19, # 5 Exhibit 20, # 6 Exhibit 21, # 7 Exhibit 22, # 8 Exhibit 23)(Schulcz, Arthur) (Entered: 03/01/2010)
80 ERRATA to 79 Plaintiffs' Reply in support of the Motion to strike the testimony of defendants' expert witness under Federal Rule of Evidence 702, or in the alternative, under Rule 403 filed by ALL PLAINTIFFS. (Attachments: # 1 Master Roster)(jeb, ) (Entered: 03/04/2010)
81 NOTICE OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Attachments: # 1 Exhibit 14, # 2 Exhibit 15, # 3 Exhibit 16)(Schulcz, Arthur) (Entered: 09/07/2010)
82 NOTICE OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Attachments: # 1 Exhibit 60, # 2 Exhibit 61, # 3 Exhibit 62)(Schulcz, Arthur) (Entered: 09/07/2010)
83 NOTICE OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Attachments: # 1 Exhibit 63, # 2 Exhibit 64, # 3 Exhibit 65, # 4 Exhibit 66, # 5 Exhibit 67)(Schulcz, Arthur) (Entered: 10/06/2010)
84 NOTICE OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Attachments: # 1 Exhibit 33, # 2 Exhibit 34, # 3 Exhibit 35, # 4 Exhibit 36, # 5 Exhibit 37)(Schulcz, Arthur) (Entered: 10/06/2010)
85 ERRATA to Notice of Supplemental New Evidence re:Selection Processes by ALL PLAINTIFFS 84 NOTICE OF SUPPLEMENTAL AUTHORITY filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 35)(Schulcz, Arthur) (Entered: 10/06/2010)
86 NOTICE OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Attachments: # 1 Exhibit 24, # 2 Exhibit 25, # 3 Exhibit 26, # 4 Exhibit 27, # 5 Exhibit 28, # 6 Exhibit 29)(Schulcz, Arthur) (Entered: 11/09/2010)
87 ERRATA to Exhibit 37 by ALL PLAINTIFFS 84 NOTICE OF SUPPLEMENTAL AUTHORITY filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 37)(Schulcz, Arthur) (Entered: 11/10/2010)
88 ERRATA to Exhibit 67 by ALL PLAINTIFFS 83 NOTICE OF SUPPLEMENTAL AUTHORITY filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 67)(Schulcz, Arthur) (Entered: 11/11/2010)
89 NOTICE of Appearance by Matthew J.B. Lawrence on behalf of All Defendants (Lawrence, Matthew) (Entered: 11/16/2010)
90 MOTION for Partial Summary Judgment by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 Richardson Decl, # 3 Exhibit 2 OPNAV 1730.1D, # 4 Exhibit 3 1987 DOD Report, # 5 Exhibit 4 DODIG, # 6 Exhibit 5 2000 NIG, # 7 Exhibit 6 RADM Black NIG Test., # 8 Exhibit 7 Washburn NIG Test, # 9 Exhibit 8 Baker NIG, # 10 Exhibit 9 Holderby NIG Test, # 11 Exhibit 10 DA Memo 600, # 12 Exhibit 11 140−1.3A, # 13 Exhibit 12 Leuba, # 14 Exhibit 13 Prom %, # 15 Exhibit 14 Siskin Conjecture, # 16 Exhibit 15 CNA Promotion Chart, # 17 Exhibit 16 Ellis Report, # 18 Exhibit 17 Chief of CH list, # 19 Exhibit 18 AAS Decl, # 20 Text of Proposed Order)(Schulcz, Arthur) (Entered: 02/22/2011)
91 MOTION to Strike 90 MOTION for Partial Summary Judgment by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Hall, Christopher) (Entered: 03/11/2011)

03/22/2011 03/28/2011 03/30/2011 04/07/2011 07/22/2011 07/22/2011 08/01/2011 08/01/2011 08/15/2011 08/17/2011
08/17/2011 08/26/2011

92 Unopposed MOTION for Extension of Time to File Response/Reply as to 91 MOTION to Strike 90 MOTION for Partial Summary Judgment MOTION to Strike 90 MOTION for Partial Summary Judgment by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 03/22/2011)
93 Memorandum in opposition to re 91 MOTION to Strike 90 MOTION for Partial Summary Judgment MOTION to Strike 90 MOTION for Partial Summary Judgment filed by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 03/28/2011)
MINUTE ORDER. It appearing that the plaintiffs have filed their opposition to the defendant's motion to strike on March 28, 2011, the court hereby DENIES as moot 92 the plaintiffs' motion for extension of time to file their opposition to the defendants' motion to strike. Signed by Judge Ricardo M. Urbina on 3/30/11.(lcrmu1) (Entered: 03/30/2011)
94 REPLY to opposition to motion re 91 MOTION to Strike 90 MOTION for Partial Summary Judgment MOTION to Strike 90 MOTION for Partial Summary Judgment filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY. (Hall, Christopher) (Entered: 04/07/2011)
95 MOTION for Preliminary Injunction by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1 Features, # 2 Exhibit 2 CNA Promotion chart, # 3 Exhibit 3 Old Warnings, # 4 Exhibit 4 Preferences, # 5 Exhibit 5 Seasons change, # 6 Exhibit 6 Richardson Decl, # 7 Exhibit 7 1730.1D, # 8 Exhibit 8 DOD Report, # 9 Exhibit 9 AAS Declaration, # 10 Text of Proposed Order)(Schulcz, Arthur) (Entered: 07/22/2011)
96 Unopposed MOTION for Order Establishing PI Briefing Schedule by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 07/22/2011)
MINUTE ORDER granting 96 the plaintiffs' consent motion for a scheduling order. The defendant shall file an opposition to the plaintiff's motion for a preliminary injunction by 8/19/11. The plaintiffs shall file their reply brief by 9/7/11. SO ORDERED. Signed by Judge Ricardo M. Urbina on 8/1/11.(lcrmu1). (Entered: 08/01/2011)
Set/Reset Deadlines: Defendant's opposition to the plaintiff's motion for a preliminary injunction due by 8/19/2011. Plaintiff's Reply due by 9/7/2011. (tg, ) (Entered: 08/01/2011)
97 Unopposed MOTION for Extension of Time to File Response/Reply as to 95 MOTION for Preliminary Injunction by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 08/15/2011)
MINUTE ORDER granting 97 Motion for Extension of Time to File Response/Reply. On the basis of Defendants' Unopposed Motion to Extend Briefing Deadlines Related to Plaintiffs Motion for Preliminary Injunction, it is ORDERED that Defendants' motion is GRANTED, and that the briefing schedule is amended as follows: Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction is due on or before August 26, 2011; and Plaintiffs' Reply in Support of their Motion for Preliminary Injunction is due on or before September 12, 2011. SO ORDERED. Signed by Judge Ricardo M. Urbina on 8/17/11. (lcrmu1, ) (Entered: 08/17/2011)
Set/Reset Deadlines: Defendants' opposition to plaintiffs' Motion for Preliminary Injunction due by 8/26/2011; plaintiffs' reply due by 9/12/2011. (tg, ) (Entered: 08/18/2011)
98 Memorandum in opposition to re 95 MOTION for Preliminary Injunction filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY. (Attachments: # 1 Declaration Declaration of Veronica Berto, # 2 Declaration Declaration of Doyle Dunn)(Lawrence, Matthew) (Entered: 08/26/2011)

09/12/2011
01/05/2012 01/06/2012 01/12/2012 01/24/2012 01/24/2012 01/27/2012
01/27/2012
01/30/2012 01/30/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 03/21/2012
03/21/2012
04/20/2012

99 REPLY to opposition to motion re 95 MOTION for Preliminary Injunction filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 10 Powledge Decl., # 2 Exhibit 11 Poe Declaraton, # 3 Exhibit 12 Leuba Exper Decl, # 4 Exhibit 13 Joint Reg 1−05, # 5 Exhibit 14 AAS Decl)(Schulcz, Arthur) (Entered: 09/12/2011)
100 NOTICE OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Attachments: # 1 Exhibit 32 Rel Preferences, # 2 Exhibit 33 Failed Corrections, # 3 Exhibit 34 Adm. Burt Letter, # 4 Exhibit 35 Decl AAS)(Schulcz, Arthur) (Entered: 01/06/2012)
101 NOTICE OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Attachments: # 1 Exhibit A Adm Burt Letter, # 2 Exhibit B AAS Decl)(Schulcz, Arthur) (Entered: 01/06/2012)
102 NOTICE OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Attachments: # 1 Exhibit 40 Burt Letter, # 2 Exhibit 41 Decl)(Schulcz, Arthur) (Entered: 01/12/2012)
103 NOTICE OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Schulcz, Arthur) (Entered: 01/24/2012)
104 NOTICE OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Attachments: # 1 Exhibit Hosanna−Tabor)(Schulcz, Arthur) (Entered: 01/24/2012)
105 RESPONSE re 103 NOTICE OF SUPPLEMENTAL AUTHORITY filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY. (Attachments: # 1 Exhibit Exhibit A)(Hall, Christopher) (Entered: 01/27/2012)
106 RESPONSE re 102 NOTICE OF SUPPLEMENTAL AUTHORITY, 100 NOTICE OF SUPPLEMENTAL AUTHORITY, 101 NOTICE OF SUPPLEMENTAL AUTHORITY Related to Letter of Rear Adm. Robert Burt filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY. (Lawrence, Matthew) (Entered: 01/27/2012)
107 ORDER denying 95 the plaintiffs' motion for a preliminary injunction. Signed by Judge Ricardo M. Urbina on 1/30/12.(lcrmu1) (Entered: 01/30/2012)
108 MEMORANDUM OPINION denying 95 the plaintiffs' motion for a preliminary injunction. Signed by Judge Ricardo M. Urbina on 1/30/12.(lcrmu1) (Entered: 01/30/2012)
109 NOTICE OF APPEAL as to 107 Order on Motion for Preliminary Injunction by ALL PLAINTIFFS. Filing fee $ 455, receipt number 0090−2812612. Fee Status: Fee Paid. Parties have been notified. (Schulcz, Arthur) (Entered: 01/31/2012)
110 ERRATA by ALL PLAINTIFFS 109 Notice of Appeal filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit)(Schulcz, Arthur) (Entered: 01/31/2012)
111 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 109 Notice of Appeal. (kb) (Entered: 01/31/2012)
USCA Case Number 12−5027 for 109 Notice of Appeal filed by ALL PLAINTIFFS. (kb) (Entered: 01/31/2012)
112 ORDER denying 21 the plaintiffs' Motion to Amend/Correct; granting in part and denying in part 29 the defendant's Motion to Dismiss; denying 42 the plaintiffs' Motion to Amend/Correct. Signed by Judge Ricardo M. Urbina on 3/21/12.(lcrmu1) (Entered: 03/21/2012)
113 MEMORANDUM OPINION denying 21 the plaintiffs' Motion to Amend/Correct; granting in part and denying in part 29 the defendant's Motion to Dismiss; denying 42 the plaintiffs' Motion to Amend/Correct. Signed by Judge Ricardo M. Urbina on 3/21/12.(lcrmu1) (Entered: 03/21/2012)
Case randomly reassigned to Judge Gladys Kessler. Judge Ricardo M. Urbina no longer assigned to the case. (gt, ) (Entered: 04/20/2012)

05/01/2012
05/01/2012 05/02/2012
05/02/2012 05/09/2012 05/15/2012
05/16/2012
05/16/2012 05/25/2012 06/14/2012 06/21/2012 06/21/2012 07/18/2012
07/23/2012 07/23/2012 07/23/2012
07/24/2012

114 ORDER: A Status Conference shall be held in this case on May 24, 2012, at 10:15 a.m.; the parties are to submit, no later than May 17, 2012, at 5:00 p.m., a Joint Status Report responding to the Court's questions as set out in this Order. Signed by Judge Gladys Kessler on 5/1/12. (CL, ) (Entered: 05/01/2012)
Set/Reset Deadlines/Hearings: Joint Status Report due by 5/17/2012. Status Conference set for 5/24/2012 10:15 AM in Courtroom 26A before Judge Gladys Kessler. (CL, ) (Entered: 05/01/2012)
115 ORDER that no later than May 9, 2012, the parties shall submit a joint listing of all Opinions issued in this case, by both the District Court and the Court of appeals, with dates, citations, and the case number in which the Opinion was filed. Signed by Judge Gladys Kessler on 5/2/12. (CL, ) (Entered: 05/02/2012)
Set/Reset Deadlines: Joint Listing of Opinions due by 5/9/2012 (CL, ) (Entered: 05/02/2012)
116 STATUS REPORT re: Opinions Issued by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 05/09/2012)
117 Joint MOTION to Continue May 24, 2012 Status Conference, Joint MOTION for Extension of Time to File Parties' Joint Status Report by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 05/15/2012)
ORDER granting 117 Motion to Continue Status Conference and Extending the deadline for the Parties' Joint Status Report; the Status Conference now set for May 24, 2012, is hereby rescheduled to June 21, 2012 at 11:00 a.m.; the deadline for submission of the Parties' Joint Status Report is hereby extended to May 25, 2012. Signed by Judge Gladys Kessler on 5/16/12. (CL, ) (Entered: 05/16/2012)
Set/Reset Deadlines/Hearings: Joint Status Report due by 5/25/2012. Status Conference set for 6/21/2012 11:00 AM in Courtroom 26A before Judge Gladys Kessler. (CL, ) (Entered: 05/16/2012)
118 STATUS REPORT of Parties by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1 Plaintiffs' Claim Status)(Schulcz, Arthur) (Entered: 05/25/2012)
119 STATUS REPORT Suppelental Information by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Order Setting Oral Arg.)(Schulcz, Arthur) (Entered: 06/14/2012)
MINUTE ORDER: The Status Conference set for June 21, 2012, is hereby rescheduled to July 24, 2012, at 10:00 a.m. Signed by Judge Gladys Kessler on 6/21/12. (CL, ) (Entered: 06/21/2012)
Set/Reset Hearings: Status Conference set for 7/24/2012 10:00 AM in Courtroom 26A before Judge Gladys Kessler. (CL, ) (Entered: 06/21/2012)
120 MEMORANDUM re 114 Order, by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1 Thyrion Decl, # 2 Exhibit 2 Torralva Decl, # 3 Exhibit 3 Wohlrabe Decl, # 4 Exhibit 4 MJ Owens Decl, # 5 Exhibit 5 Klapach Decl, # 6 Exhibit Ex A to Klapach, # 7 Exhibit Ex B to Klapach, # 8 Exhibit 6 Lancaster Decl, # 9 Exhibit 7 Heinke Decl, # 10 Exhibit 8 Stewart Decl)(Schulcz, Arthur) (Entered: 07/18/2012)
ORDER: The Status Conference scheduled for July 24, 2012, will begin at 10:30 a.m. Signed by Judge Gladys Kessler on 7/23/12. (CL, ) (Entered: 07/23/2012)
Set/Reset Hearings: Status Conference set for 7/24/2012 10:30 AM in Courtroom 26A before Judge Gladys Kessler. (CL, ) (Entered: 07/23/2012)
121 MEMORANDUM re 114 Order, by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY. (Hall, Christopher) (Entered: 07/23/2012)
122 NOTICE of Filing of Defendants' PowerPoint Presentation Presented at Status Conference of July 24, 2012 by DEPUTY CHIEF OF CHAPLAINS, BYRON

07/24/2012 07/24/2012 07/25/2012 07/25/2012 07/25/2012
08/01/2012 08/02/2012 08/02/2012 08/11/2012 08/16/2012 08/16/2012 08/27/2012
08/31/2012 09/07/2012

HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY re Order, 121 Memorandum, Set/Reset Hearings (Attachments: # 1 Exhibit Attachment A)(Hall, Christopher) (Entered: 07/24/2012)
Minute Entry for proceedings held before Judge Gladys Kessler: Status Conference held on 7/24/2012. (Court Reporter: Susan Tyner) (cdw) (Entered: 07/24/2012)
123 NOTICE of Response to the Court's Question by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS re Status Conference (Schulcz, Arthur) (Entered: 07/24/2012)
124 CASE MANAGEMENT ORDER #1 (see Order for details). Signed by Judge Gladys Kessler on 7/25/12. (CL, ) (Entered: 07/25/2012)
Set/Reset Deadlines: Cross Motions due by 2/15/2013. Response to Cross Motions due by 3/15/2013. Reply to Cross Motions due by 3/31/2013. Dispositive Motions due by 1/15/2013. Response to Dispositive Motions due by 2/15/2013. Reply to Dispositive Motions due by 3/15/2013. (See Order for other dates) (CL, ) (Entered: 07/25/2012)
MINUTE ORDER denying without prejudice 34 Motion for Partial Summary Judgment; denying without prejudice 46 Motion for Summary Judgment; denying without prejudice 51 Motion for Order; denying without prejudice 55 Motion for Partial Summary Judgment; denying without prejudice 57 Motion for Order; denying without prejudice 60 Motion for Order; denying without prejudice 73 Motion to Strike; denying without 90 Motion for Partial Summary Judgment; denying without prejudice 91 Motion to Strike. Signed by Judge Gladys Kessler on 07−269. (CL, ) (Entered: 07/25/2012)
125 MOTION to Amend/Correct Case Management Order Filing Dates by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1 Filing date chart, # 2 Text of Proposed Order)(Schulcz, Arthur) (Entered: 08/01/2012)
126 ORDER granting 125 Plaintiffs' Unopposed Motion to Modify Case Management Order #1 (see Order for dates and details). Signed by Judge Gladys Kessler on 8/2/12. (CL, ) (Entered: 08/02/2012)
Set/Reset Deadlines: Cross Motions due by 3/11/2013. Response to Cross Motions due by 4/11/2013. Reply to Cross Motions due by 4/26/2013. Dispositive Motions due by 2/11/2013. Response to Dispositive Motions due by 3/11/2013. Reply to Dispositive Motions due by 4/11/2013. (CL, ) (Entered: 08/02/2012)
127 MOTION to Amend/Correct 124 Order concerning Plaintiffs' Promotion PSJ by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1 Appellants' Opening Br., # 2 Text of Proposed Order)(Schulcz, Arthur) (Entered: 08/11/2012)
128 ORDER that Defendants' Opposition to Plaintiffs' Pending Motion to Amend Case Management Order #1 shall be due no later than August 27, 2012, at 4:00 p.m; Plaintiffs' Reply shall be due no later than August 31, 2012, at 4:00 p.m. Signed by Judge Gladys Kessler on 8/16/12. (CL, ) (Entered: 08/16/2012)
Set/Reset Deadlines: Responses due by 8/27/2012 Replies due by 8/31/2012. (CL, ) (Entered: 08/16/2012)
129 RESPONSE re 127 MOTION to Amend/Correct 124 Order concerning Plaintiffs' Promotion PSJ filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY. (Hall, Christopher) (Entered: 08/27/2012)
130 REPLY to opposition to motion re 127 MOTION to Amend/Correct 124 Order concerning Plaintiffs' Promotion PSJ filed by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 08/31/2012)
131 ORDER granting 127 Plaintiffs' Motion to Amend Case Management Order #1' Dismissal of Plaintiffs' Partial Summary Judgment Motion Concerning Chaplain Selection Boards (see Order for details). Signed by Judge Gladys Kessler on 9/7/12. (CL, ) (Entered: 09/07/2012)

10/01/2012
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10/15/2012 10/15/2012 10/15/2012 11/01/2012 11/05/2012 11/05/2012

132 NOTICE of Filing Consolidated Complaint by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS, ASSOCIATED GOSPEL CHURCHES, CHAPLAINCY OF FULL GOSPEL CHURCHES (Attachments: # 1 Exhibit Consolidated Complaint, # 2 Exhibit 1 Ammerman Affid, # 3 Exhibit 2 List of Chiefs, # 4 Exhibit 3 Wilkins v US, # 5 Exhibit 4 DMDC data, # 6 Exhibit 5 Rel Demographics, # 7 Exhibit 6 Formula for FG goals, # 8 Exhibit 7 Ellis Affid, # 9 Exhibit 8 Accession Goals, # 10 Exhibit 9 DON Rel Preferences, # 11 Exhibit 10 Poe Declar, # 12 Exhibit 11 Leuba Allonge, # 13 Exhibit 12 NL Accessions− QE−6, # 14 Exhibit 13 CDR Lyle's Orders, # 15 Exhibit 14 Ellis Report, # 16 Exhibit 15 Brom Bd Mbrshps, # 17 Exhibit 16 Ovr& under rep− LCDR, # 18 Exhibit 17 Undr−Ovr CDR, # 19 Exhibit 18 Stafford Report, # 20 Exhibit 19 DODIG, # 21 Exhibit 20 Adherant Ch ratio, # 22 Exhibit 21 Suprssion Letter, # 23 Exhibit 22 Gomulks Rcrt email)(Schulcz, Arthur) (Entered: 10/01/2012)
133 ERRATA to Plaintiffs' Notice of Filing a Consolidated Complaint by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS, ASSOCIATED GOSPEL CHURCHES, CHAPLAINCY OF FULL GOSPEL CHURCHES 132 Notice (Other),,,, filed by ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ASSOCIATED GOSPEL CHURCHES, ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, CHAPLAINCY OF FULL GOSPEL CHURCHES. (Schulcz, Arthur) (Entered: 10/03/2012)
134 CONSOLIDATED COMPLAINT against SECRETARY OF THE NAVY, UNITED STATES NAVY filed by ALL PLAINTIFFS.(jf, ) (Entered: 10/04/2012)
135 NOTICE of Filing the Consolidated Complaint's Exhibits by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS, ASSOCIATED GOSPEL CHURCHES, CHAPLAINCY OF FULL GOSPEL CHURCHES re 134 Complaint (Attachments: # 1 Exhibit 1 Ammerman Affidavit, # 2 Exhibit 2 List of Chiefs of Chaps, # 3 Exhibit 3 Wilkins v. U.S., # 4 Exhibit 4 DMDC Faith Gp data, # 5 Exhibit 5 DON Demorgaphics, # 6 Exhibit 6 FG Accession Formula, # 7 Exhibit 7 Ellis Affidavit, # 8 Exhibit 8 Accession Goals, # 9 Exhibit 9 DON Religious Affil Study, # 10 Exhibit 10 Poe Declaration, # 11 Exhibit 11 Leuba Allonge Decl, # 12 Exhibit 12 Table QE−6, FG Results, # 13 Exhibit 13 Temp−Lyle Orders, # 14 Exhibit 14 Ellis REport, # 15 Exhibit 15 Chap Prom Bd Mbrs, # 16 Exhibit 16 LCDR Over & Und Rep, # 17 Exhibit 17 CDR Over & Under Rep, # 18 Exhibit 18 Stafford Report, # 19 Exhibit 19 Extract DODIG, # 20 Exhibit 20 Adhrnt−Chap ratio, # 21 Exhibit 21 Gitmo Supress memo, # 22 Exhibit 22 Gomulka Rctg Email)(Schulcz, Arthur) (Entered: 10/05/2012)
136 Joint MOTION for Extension of Time to File Claims Chart by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Lawrence, Matthew) (Entered: 10/15/2012)
MINUTE ORDER granting 136 the Parties' Motion for Extension of Time; the Parties shall have up to and including November 5, 2012, in which to file a claims chart as described in Case Management Order #1. Signed by Judge Gladys Kessler on 10/15/12. (CL, ) (Entered: 10/15/2012)
Set/Reset Deadlines: Claims Chart due by 11/5/2012 (CL, ) (Entered: 10/15/2012)
137 MOTION for Discovery in accord with CMO # 1 by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS (Attachments: # 1 Exhibit 1 Ellison Affid, # 2 Exhibit 2 Lancasster Affid, # 3 Exhibit 3 Kitchen Decl, # 4 Text of Proposed Order)(Schulcz, Arthur) (Entered: 11/01/2012)
138 NOTICE of Filing Claims Chart by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY re 134 Complaint (Attachments: # 1 Claims Chart Organized by Transaction, Occurrence, or Series of Transactions or Occurrences)(Lawrence, Matthew) (Entered: 11/05/2012)
139 NOTICE of Filing of Claims and Relief Chart by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS re 124 Order (Attachments: # 1 Exhibit Claims and Relief Chartf)(Schulcz, Arthur) (Entered:

11/07/2012 11/07/2012 11/15/2012 11/15/2012
11/16/2012 11/19/2012 11/19/2012 11/19/2012 11/23/2012 11/29/2012 11/29/2012 12/04/2012
12/04/2012 12/04/2012 12/14/2012 12/17/2012

11/05/2012)
MINUTE ORDER: A Status Conference is hereby scheduled in this case for Monday, November 19, 2012, at 10:15 a.m. Signed by Judge Gladys Kessler on 11/7/12. (CL, ) (Entered: 11/07/2012)
Set/Reset Hearings: Status Conference set for 11/19/2012 10:15 AM in Courtroom 26A before Judge Gladys Kessler. (CL, ) (Entered: 11/07/2012)
140 NOTICE of New and Supplemental Evidence by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS (Attachments: # 1 Exhibit 42 Dr. Leuba 9−20−12 Declaration, # 2 Exhibit 43 AAS Declaration)(Schulcz, Arthur) (Entered: 11/15/2012)
141 RESPONSE re 137 MOTION for Discovery in accord with CMO # 1 Defendant's Response to Plaintiffs' Motion to Take Depositions to Preserve Discovery filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY. (Hall, Christopher) (Entered: 11/15/2012)
142 MEMORANDUM re Order by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 11/16/2012)
143 ORDER that the parties submit a Joint Statement by December 15, 2012, identifying what briefs and exhibits constitute the record to be considered in resolving Plaintiff's Motion for Preliminary Injunction. Signed by Judge Gladys Kessler on 11/19/12. (CL, ) (Entered: 11/19/2012)
Set/Reset Deadlines: Joint Statement due by December 15, 2012. (CL, ) (Entered: 11/19/2012)
Minute Entry for proceedings held before Judge Gladys Kessler: Status Conference held on 11/19/2012. (Court Reporter: Kelli Humiston) (tth) (Entered: 11/19/2012)
144 REPLY to opposition to motion re 137 MOTION for Discovery in accord with CMO # 1 filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1 Stafford−DODIG)(Schulcz, Arthur) (Entered: 11/23/2012)
145 ORDER granting in part and denying in part 137 Motion for Discovery. Signed by Judge Gladys Kessler on 11/29/2012. (lcgk2, ) (Entered: 11/29/2012)
146 MEMORANDUM AND OPINION to ORDER granting in part and denying in part Plaintiffs' Motion for Discovery. Signed by Judge Gladys Kessler on 11/29/2012. (lcgk2, ) (Entered: 11/29/2012)
147 MOTION to Certify Class by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1 Chief List, # 2 Exhibit 2 Wilkins, # 3 Exhibit 3 Anal of 2012 Alf Roster, # 4 Exhibit 4 NDU Article, # 5 Exhibit 5 Features, # 6 Exhibit 6 Extract CNA Rept, # 7 Exhibit 7 CNA Prom Chart, # 8 Exhibit 8 Sturm Admission, # 9 Exhibit 9 Extract DODIG Report, # 10 Exhibit 10 Statist Evidence, # 11 Exhibit 11 Allonge Decl, # 12 Exhibit 12 Dr Crick Decl, # 13 Exhibit 13 SBC Resolutoin, # 14 Exhibit 14 AGC Resolution, # 15 Exhibit 15 AAS Decl, # 16 Exhibit 16 Authenticate Decl, # 17 Text of Proposed Order)(Schulcz, Arthur) (Entered: 12/04/2012)
148 Unopposed MOTION for Extension of Time to File Class Certification Motion by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 12/04/2012)
MINUTE ORDER granting 148 Plaintiffs' Unopposed Motion for Extension Time of 12 minutes in which to file their Reply in Support of Plaintiffs' Motion for Class Certification. Signed by Judge Gladys Kessler on 12/4/12. (CL, ) (Entered: 12/04/2012)
149 Unopposed MOTION for Extension of Time to File Joint Document List by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 12/14/2012)
MINUTE ORDER granting 149 the Unopposed Motion for Extension of Time; the date for the Parties' Joint Statement Listing Briefs and Exhibits Constituting the

12/17/2012 12/21/2012 12/21/2012 12/21/2012 12/21/2012 12/27/2012 01/14/2013 01/15/2013 01/15/2013 01/18/2013
01/23/2013

Plaintiffs' Motion for Preliminary Injunction Record is extended to December 21, 2012. Signed by Judge Gladys Kessler on 12/17/12. (CL, ) (Entered: 12/17/2012)
Set/Reset Deadlines: Joint Statement due by 12/21/2012 (CL, ) (Entered: 12/17/2012)
150 Unopposed MOTION for Extension of Time to File Opposition to Plaintiffs' Motion for Class Certification by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Lawrence, Matthew) (Entered: 12/21/2012)
151 NOTICE of Plaintiffs' Response to the Court's 11/19/12 Question by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS (Schulcz, Arthur) (Entered: 12/21/2012)
MINUTE ORDER granting 150 Motion for Extension of Time to File. Defendants shall file opposition to Plaintiffs' motion for class certification by January 21, 2013. Plaintiffs shall file reply in support of their motion for class certification by February 12, 2013. Signed by Judge Gladys Kessler on 12/21/12. (lcgk1, ) (Entered: 12/21/2012)
152 STATUS REPORT Joint Statement of Record to Be Considered in Resolving Plaintiffs' Motion for Preliminary Injunction by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY. (Lawrence, Matthew) (Entered: 12/21/2012)
Set/Reset Deadlines: Motion due by 1/21/2013. Reply due by 2/12/2013. (tth) (Entered: 12/27/2012)
153 Consent MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion for Class Certification by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 01/14/2013)
MINUTE ORDER granting 153 Defendants' Motion for Extension of Time; Defendants shall have up to and including January 23, 2013, in whichh to file their Opposition to Plaintiffs' Motion for Class Certification; Plaintiffs shall have up to and including February 15, 2013, in which to file a Reply, if any.. Signed by Judge Gladys Kessler on 1/15/13. (CL, ) (Entered: 01/15/2013)
Set/Reset Deadlines: Responses due by 1/23/2013 Replies due by 2/15/2013. (CL, ) (Entered: 01/15/2013)
154 MANDATE of USCA (certified copy) as to 17 Notice of Appeal to DC Circuit Court,,, filed by MARY HELEN SPALDING, JOHN WITHERSPOON, DANIEL E. ROYSDEN, KLON K. KITCHEN, JR., WILLIAM C. BLAIR, THOMAS RUSH, MICHAEL BELT, RICHARD L. ARNOLD, DAVID L GIBSON, ASSOCIATED GOSPEL CHURCHES, MICHAEL LAVELLE, MARK R. JOHNSTON, ROBERT H. ADAIR, JAMES M. WEIBLING, DENISE Y. MERRITT, DAVID S. WILDER, GEORGE P. BYRUM, CHAPLAINCY OF FULL GOSPEL CHURCHES, LARRY FARRELL, ROBERT DUANE PURSER, TIMOTHY D. NALL, FURNISS HARKNESS, LYLE SWANSON, GREGORY R. DE MARCO, RAY A. BAILEY, GEORGE W. LINZEY, MICHAEL A. WRIGHT, MARTHA CARSON, RAFAEL J. QUILES, 109 Notice of Appeal to DC Circuit Court filed by ALL PLAINTIFFS ; ORDERED and ADJUDGED that the determination of the District Court that plaintiffs lack Article III standing to seek injunctive relief be reversed; the district court's denial of preliminary injunction be vacated; and the case be remanded for further proceedings, in accordance with the opinion of the court filed herein this date. USCA Case Number 12−5027. (md, ) (Entered: 01/23/2013)
155 Consent MOTION for Leave to File Excess Pages and Defendants' Opposition to Plaintiffs' Motion for Class Certification by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES

01/24/2013 01/24/2013
01/29/2013 01/30/2013 01/30/2013 02/08/2013
02/11/2013
02/11/2013 02/22/2013
02/25/2013

NAVY (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, Defendants' Opposition to Plaintiffs' Motion for Class Certification, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11)(Lawrence, Matthew) (Entered: 01/23/2013)
MINUTE ORDER granting 155 Defendants' Consent Motion for Leave to File Excess Pages. Signed by Judge Gladys Kessler on 1/24/13. (CL, ) (Entered: 01/24/2013)
156 Memorandum in opposition to re 147 MOTION to Certify Class filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF THE NAVY, UNITED STATES NAVY. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(znmw, ) (Entered: 01/25/2013)
157 Consent MOTION for Extension of Time to File Response/Reply as to 147 MOTION to Certify Class , Consent MOTION for Leave to File Excess Pages for Reply by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 01/29/2013)
MINUTE ORDER granting 157 Plaintiffs' Unopposed Motion for Extension of Time and for an increase of page limit; Plaintiffs shall have up to and including February 25, 2013, in which to file their Reply in support of their Motion for Class Certification and may increase the page limit to 31 pages. Signed by Judge Gladys Kessler on 1/30/13. (CL, ) (Entered: 01/30/2013)
Set/Reset Deadlines: Replies due by 2/25/2013. (CL, ) (Entered: 01/30/2013)
158 Consent MOTION for Extension of Time to Extension of the Briefing Schedule for the Parties' Cross−Motions on Statute−of−Limitations Grounds by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 02/08/2013)
MINUTE ORDER granting 158 Defendants' Consent Motion for Extension of Time; Defendants' Dispositive Motions shall be due by Februiary 22, 2013; Plaintiffs' Response and Cross−Motion shall be due by April 1, 2013; Defendants' Reply and Cross−Motion Opposition shall be due by May 3, 2013; and Plaintiffs' Cross−Motion Reply shall be due by May 20, 2013. Signed by Judge Gladys Kessler on 2/11/13. (CL, ) (Entered: 02/11/2013)
Set/Reset Deadlines: Cross−Motions due by 4/1/2013. Response to Cross− Motions due by 5/3/2013. Reply to Cross−Motions due by 5/20/2013. Dispositive Motions due by 2/22/2013. Response to Dispositive Motions due by 4/1/2013. Reply to Dispositive Motions due by 5/3/2013. (CL, ) (Entered: 02/11/2013)
159 MOTION for Summary Judgment as to Claims that Accrued Outside the Limitations Period by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Hall, Christopher) (Entered: 02/22/2013)
160 REPLY to opposition to motion re 147 MOTION to Certify Class filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1 Leuba Master Roster, # 2 Exhibit 2 CHC History, # 3 Exhibit 3 AGC−Garmen Bio, # 4 Exhibit 4 Ammerman, # 5 Exhibit 5 CHC 5 yr plan, # 6 Exhibit 6 Ellis Afid, # 7 Exhibit 7 Lueba Regress Anal, # 8 Exhibit 8 Bd Precept, # 9 Exhibit 9 DODIG, # 10 Exhibit 10 Poe Decl, # 11 Exhibit 11 CHC Qual Plan, # 12 Exhibit 12 BUPERS Email, # 13 Exhibit 13 CHC Misconduct, # 14 Exhibit 14 Bd Mbr test, # 15 Exhibit 15 Proj Test, # 16 Exhibit 16 RADM Black Test, # 17 Exhibit 17 )( NIG, # 18 Exhibit 18 CNA Study, # 19 Exhibit 19 Denom Trail, # 20 Exhibit 20 Leuba Qual, # 21 Exhibit 20−A CV, # 22 Exhibit 20−B Reconciliation, # 23 Exhibit 20−C Siskin v Siskin, # 24 Exhibit 20−D Sturm, # 25 Exhibit 20−E Objuration, # 26 Exhibit 20−F Faild Crse Corre, # 27 Exhibit 21 Roysden, # 28 Exhibit 22 Gordy, # 29 Exhibit 23 Wilder, # 30 Exhibit 24 Klapach, # 31 Exhibit 25

02/28/2013 02/28/2013 03/01/2013 03/04/2013 03/04/2013 03/07/2013
03/08/2013 03/11/2013 03/11/2013 03/13/2013 03/15/2013 03/15/2013 03/25/2013
03/27/2013

Stewart, # 32 Exhibit 26 Dufour, # 33 Exhibit 27 Burt, # 34 Exhibit 28 Byrum, # 35 Exhibit 29 Supression, # 36 Exhibit 30 Naples, # 37 Exhibit 31 Rcals, # 38 Exhibit 32)(Schulcz, Arthur) (Entered: 02/26/2013)
161 ORDER denying Plaintiffs' Motion for a Preliminary Injunction (on remand from the Court of Appeals). Signed by Judge Gladys Kessler on 2/28/13. (CL, ) (Entered: 02/28/2013)
162 MEMORANDUM OPINION to the Order denying Plaintiffs' Motion for a Preliminary Injunction (on remand from the Court of Appeals). Signed by Judge Gladys Kessler on 2/28/13. (CL, ) (Entered: 02/28/2013)
163 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 161 Order by ALL PLAINTIFFS. Filing fee $ 455, receipt number 0090−3235715. Fee Status: Fee Paid. Parties have been notified. (Schulcz, Arthur) (Entered: 03/01/2013)
164 AMENDED MEMORANDUM OPINION to the Order denying Plaintiffs' Motion for a Preliminary Injunction (this corrects an editing error). Signed by Judge Gladys Kessler on 3/1/13. (CL, ) (Entered: 03/04/2013)
165 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 163 Notice of Appeal to DC Circuit Court. (znmw, ) (Entered: 03/04/2013)
166 Unopposed MOTION for Leave to File Sur−Response by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, NAVY CHAPLAINCY, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Lawrence, Matthew) (Entered: 03/07/2013)
USCA Case Number 13−5071 for 163 Notice of Appeal to DC Circuit Court filed by ALL PLAINTIFFS. (td, ) (Entered: 03/08/2013)
MINUTE ORDER granting 166 the Unopposed Motion for Leave to File a Surreply; Defendants' Surreply is due by March 27, 2013; Plaintiffs' Sur−surreply is due by April 15, 2013. Signed by Judge Gladys Kessler on 3/11/13. (CL, ) (Entered: 03/11/2013)
Set/Reset Deadlines: Defendants' Surreply due by 3/27/13. Plaintiffs' Sur−surreply due by 4/15/2013 (CL, ) (Entered: 03/11/2013)
167 Unopposed MOTION for Order Establishing Briefing Schedule for Plaintiffs' Motion To Strike Defendants' Expert Testimony by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 03/13/2013)
168 ORDER granting 167 Plaintiffs' Unopposed Motion to Establish Briefing Dates for Plaintiffs' Renewed Motion to Strike Defendants' Expert Testimony (see Order for details). Signed by Judge Gladys Kessler on 3/14/2013. (CL, ) (Entered: 03/15/2013)
Set/Reset Deadlines: Motion to Strike due by 3/25/2013. Responses due by 4/25/2013 Replies due by 5/13/2013. (CL, ) (Entered: 03/15/2013)
169 MOTION for Order Striking Defendants Expert by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1 Siskin 2006 Decl, # 2 Exhibit 2 Siskin Deop, # 3 Exhibit 3 Extract Siskin Txt bk, # 4 Exhibit 4 Lany Text Book, # 5 Exhibit 5 List of Rebuttals, # 6 Exhibit 6 Leuba Commnets, # 7 Exhibit 7 Pls Cites 2 Denom Pref, # 8 Exhibit 8 Prom Hierarchies, # 9 Exhibit 9 Access Hierarchies, # 10 Exhibit 10 CADRAG Hierarch, # 11 Exhibit 11 Table 5, Correlations, # 12 Exhibit 12 FCCOM Ch 7, # 13 Exhibit 13 FCCOM Ch 3, # 14 Exhibit 14 App AP, # 15 Exhibit 15 Leuba Rebuttal, # 16 Exhibit 16 Extr SER Precept, # 17 Exhibit 17 Leuba 11−30−09, # 18 Exhibit 18 CNA Prom Study, # 19 Exhibit 19 Recalls 86−02, # 20 Exhibit 20 AAS Decl, # 21 Text of Proposed Order)(Schulcz, Arthur) (Entered: 03/25/2013)
170 SURREPLY to re 155 Consent MOTION for Leave to File Excess Pages and Defendants' Opposition to Plaintiffs' Motion for Class Certification, 147 MOTION to Certify Class filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY. (Hall,

03/29/2013 03/29/2013 03/29/2013 04/05/2013
04/05/2013 04/05/2013 04/05/2013 04/08/2013 04/08/2013 04/15/2013 04/15/2013

Christopher) (Entered: 03/27/2013)
171 Unopposed MOTION for Extension of Time to File Response and Cross Motion and Subsequent Briefing by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 03/29/2013)
MINUTE ORDER granting 171 Motion for Extension of Time to File. Plaintiffs' Cross−Motion and Response to Defendants' Partial Summary Judgment Motion due April 4, 2013. Defendants' Reply Supporting their Motion for Partial Summary Judgment and Response to Plaintiffs' Cross−Motion due May 8, 2013. Plaintiffs' Reply Supporting their Cross−Motion due May 23, 2013. Signed by Judge Gladys Kessler on 3/29/13. (lcgk1, ) Modified event title on 4/1/2013 (znmw, ). (Entered: 03/29/2013)
Set/Reset Deadlines: Cross Motions due by 4/4/2013; Response to Cross Motions due by 5/8/2013; Reply to Cross Motions due by 5/23/2013; Responses due by 4/4/2013; Replies due by 5/8/2013. (tth) (Entered: 03/29/2013)
172 RESPONSE re 159 MOTION for Summary Judgment as to Claims that Accrued Outside the Limitations Period and Cross Motion filed by ALL PLAINTIFFS. (Attachments: # 1 Statement of Facts Undisputed Facts, # 2 Exhibit 1 Time line, # 3 Exhibit 2 Dulke Affid, # 4 Exhibit 3 Relig Pref Study, # 5 Exhibit 4 Prom Bd Mbrs, # 6 Exhibit 5 DODIG Rept, # 7 Exhibit 6 AUfderheide Int, # 8 Exhibit 7 Wilkins Decl, # 9 Exhibit 8 DODIG Holderby, # 10 Exhibit 9 Thompson, # 11 Exhibit 10 Linzey, # 12 Exhibit 11 Spalding, # 13 Exhibit 12 Doney, # 14 Exhibit 13 Marsh, # 15 Exhibit 14 Hamme, # 16 Exhibit 15 Harkness, # 17 Exhibit 16 RADM Black NIG, # 18 Exhibit 17 Preferences, # 19 Exhibit 18 Failed Corrections, # 20 Exhibit 19 2012 Leuba, # 21 Exhibit 20 Fig 5 Reg Anal, # 22 Exhibit 21 Navy Resp to Adm, # 23 Exhibit 22n Blair, # 24 Exhibit 23 McNamara Memo, # 25 Exhibit 24 Muchow Ltr Cdr, # 26 Exhibit 25 Kitchen Depo, # 27 Exhibit 26 Muchow ltr Kitchen, # 28 Exhibit 27 Rush, # 29 Exhibit 28 Rock ltr Marsh, # 30 Exhibit 29 Cooper ltr, # 31 Exhibit 30 Stafford Rpt, # 32 Exhibit 31 Ellison, # 33 Exhibit 32 Bouck, # 34 Exhibit 33 NIg Washburn, # 35 Exhibit 34 NiG FY 08, # 36 Exhibit 35 DODIG Stafford, # 37 Exhibit 36 Decl AS, # 38 Text of Proposed Order)(Schulcz, Arthur) (Entered: 04/05/2013)
173 Consent MOTION for Extension of Time to File Response/Reply as to 159 MOTION for Summary Judgment as to Claims that Accrued Outside the Limitations Period by four hours and eight minutes by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 04/05/2013)
174 ERRATA by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS 172 Response to motion,,,,, filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Pls Resp to Defs Facts)(Schulcz, Arthur) (Entered: 04/05/2013)
175 Cross MOTION for Partial Summary Judgment by ALL PLAINTIFFS. (See Docket Entry 172 to view document). (znmw, ) (Entered: 04/08/2013)
MINUTE ORDER granting 173 Plaintiffs' Consent Motion for Extension of Time; Plaintiffs time for filing their Opposition and Cross−Motion to the Defendants' Partial Summary Judgment Motion Concerning the Statute of Limitations is enlarged by 4 hours and 8 minutes. Signed by Judge Gladys Kessler on 4/5/13. (CL, ) Modified on 4/8/2013 (tth, ). (Entered: 04/08/2013)
176 ERRATA by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS 172 Response to motion,,,,, filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Ex 18 Complete, # 2 Exhibit Ex 19 Complete)(Schulcz, Arthur) (Entered: 04/08/2013)
177 NOTICE (Other) by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Lawrence, Matthew) (Entered: 04/15/2013)
178 SURREPLY to re 147 MOTION to Certify Class filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A McFerren Depo, # 2 Exhibit B Poem Decl, # 3 Exhibit C Ch Belt Resp 2 Inter, # 4 Exhibit D Demy Decl, # 5 Exhibit E Arnold Decl, # 6 Exhibit F CHC mgt not neutral, # 7 Exhibit G Sturm Decl)(Schulcz, Arthur) (Entered:

04/24/2013 04/24/2013 04/24/2013 04/26/2013 05/02/2013
05/22/2013
05/22/2013 05/30/2013 05/30/2013 05/30/2013 06/10/2013

04/15/2013)
179 Consent MOTION for Order Restablishing Briefing Dates by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1 CoA Order Expediting, # 2 Text of Proposed Order)(Schulcz, Arthur) (Entered: 04/24/2013)
180 ORDER granting 179 Plaintiffs' Consent Motion for an Order Reestablishing Briefing Dates (see Order for details). Signed by Judge Gladys Kessler on 4/24/13. (CL, ) (Main Document 180 replaced on 4/26/2013 to correct double header) (zmm, ). (Entered: 04/24/2013)
Set/Reset Deadlines: Defendants' Opposition to Plaintiffs' Motion to Strike due by 5/2/2013. Defendants' Reply/Opposition concerning the Parteis' Motion and Cross Motion for Summary Judgment on the Statute of Limitations due by 5/22/13. Plaintiffs' Reply in Support of Plaintiffs' Motion to Strike due by 6/3/2013. Plaintiffs' Reply in Support of Their Cross Motion for Summaary Judgment on the Statue of Limitations due by 6/17/2013. (CL, ) (Entered: 04/24/2013)
Set/Reset Deadlines: Defendants' response to plaintiffs' motion to strike due 5/2/13; Defendant's reply/opposition concerning the parties motion and cross motion for summary judgment on the statute of limitations due 5/22/13; plaintiffs' reply in support of motion to strike due 6/3/13; plaintiffs' reply in support of their cross motion for summary judgment on the statute of limitations due 6/17/13. (zmm, ) (Entered: 04/26/2013)
181 Memorandum in opposition to re 169 MOTION for Order Striking Defendants Expert filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Lawrence, Matthew) (Entered: 05/02/2013)
182 REPLY to opposition to motion re 159 MOTION for Summary Judgment as to Claims that Accrued Outside the Limitations Period filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY. (Attachments: # 1 Response to Plaintiffs' Statement of Material Facts, # 2 Exhibit Ex. A, # 3 Exhibit Ex. B, # 4 Exhibit Ex. C (redacted), # 5 Exhibit Ex. D, # 6 Exhibit Ex. E, # 7 Exhibit Ex. F, # 8 Exhibit Ex. G, # 9 Exhibit Ex. H, # 10 Exhibit Ex. I, # 11 Exhibit Ex. J)(Hall, Christopher) Modified link on 5/23/2013 (znmw, ). (Entered: 05/22/2013)
183 Memorandum in opposition to re 175 MOTION for Partial Summary Judgment filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY. (See Docket Entry 182 to view document). (znmw, ) (Entered: 05/23/2013)
184 Consent MOTION for Extension of Time to File Response/Reply in Support of Plaintiffs' Motions to Strike Defendants' Expert (169) and Statue of Limitations (171) by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 05/30/2013)
185 ORDER granting 184 Plaintiffs' Consent Motion for an Order Reestablishing the filing dates; Plaintiffs' Reply in Support of their Motion to Strike shall be filed no later than June 10, 2013; Plaintiffs' Reply in support of their Cross−Moton for Summary Judgment on Statute of Limitations shall be filed no later than July 1, 2013. Signed by Judge Gladys Kessler on 5/30/13. (CL, ) (Entered: 05/30/2013)
Set/Reset Deadlines: Reply to Cross Motion due by 7/1/2013. Reply in support of Motion to Strike due by 6/10/2013. (CL, ) (Entered: 05/30/2013)
186 REPLY to opposition to motion re 169 MOTION for Order Striking Defendants Expert filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 21 Extract of 12−6−05 Decl, # 2 Exhibit 22 Siskin 9−03, # 3 Exhibit 23 Muchow Memo, # 4 Exhibit 24 CNA Prom study, # 5 Exhibit 25 Simple Explanation, # 6 Exhibit Ex A to Ex 25, # 7 Exhibit

06/12/2013
06/25/2013 06/26/2013
06/26/2013 07/08/2013
03/06/2014
09/04/2014 09/04/2014 09/26/2014
09/26/2014 09/26/2014 10/03/2014 10/06/2014 10/07/2014 10/17/2014

Ex B to Ex 25 Discrim History, # 8 Exhibit Ex C to Ex 25 Errors, # 9 Exhibit Ex 26 Warnings, # 10 Exhibit Ex 27 Table QE−6, # 11 Exhibit Ex 28 Auth decl)(Schulcz, Arthur) (Entered: 06/10/2013)
187 ERRATA to Reply Exhibit 22 by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS 186 Reply to opposition to Motion,, filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Ex 22 Missing pages)(Schulcz, Arthur) (Entered: 06/12/2013)
188 Consent MOTION for Extension of Time to File Reply by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 06/25/2013)
MINUTE ORDER granting 188 Plaintiffs' Consent Motion for Extension of Time; Plaintiffs shall file their Reply to Defendants' Opposition to Plaintiffs' Motion for Summary Judgment Concerning the Statute of Limitations on or before July 8, 2013. Signed by Judge Gladys Kessler on 6/26/13. (CL, ) (Entered: 06/26/2013)
Set/Reset Deadlines: Replies due by 7/8/2013. (CL, ) (Entered: 06/26/2013)
189 REPLY to opposition to motion re 175 MOTION for Partial Summary Judgment concerning SOL filed by ALL PLAINTIFFS. (Attachments: # 1 Statement of Facts Reply to Facts, # 2 Exhibit 39 Lancaster, # 3 Exhibit 40 Mak, # 4 Exhibit 41 Wilkins, # 5 Exhibit 42 Demy, # 6 Exhibit 44 Scott, # 7 Exhibit 45 Baugham, # 8 Exhibit 46 Defs Disc Resp, # 9 Exhibit 47 AAS, # 10 Exhibit 43 Lavelle)(Schulcz, Arthur) (Entered: 07/09/2013)
190 MANDATE of USCA (certified copy) as to 163 Notice of Appeal to DC Circuit Court filed by ALL PLAINTIFFS ; ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby affirmed, in accordance with the opinion of the court filed herein this date. USCA Case Number 13−5071. (Attachments: # 1 USCA Opinion)(md, ) (Entered: 03/08/2014)
191 ORDER denying 147 Plaintiffs' Motion for Class Certification; Plaintiffs' claims challenging the Thirds Policy are dismissed sua sponte for lack of subject matter jurisdiction. Signed by Judge Gladys Kessler on 9/4/14. (CL, ) (Entered: 09/04/2014)
192 MEMORANDUM OPINION to the Order denying Plaintiffs' Motion for Class Certification. Signed by Judge Gladys Kessler on 9/4/14. (CL, ) (Entered: 09/04/2014)
193 ORDER granting 159 Defendants' Motion for Partial Summary Judgment; denying 175 Plaintiffs' Cross−Motion for Partial Summary Judgment (see Order for details); the Parties shall, by October, 2014, jointly submit a Notice identifying the claims that remain pending following this Order and the Court's Order of September 4, 2014; a Status Conference is hereby scheduled for October 21, 2014, at 11:30 a.m. Signed by Judge Gladys Kessler on 9/26/14. (CL, ) (Entered: 09/26/2014)
194 MEMORANDUM OPINION to the Order on the Motions for Partial Summary Judgment. Signed by Judge Gladys Kessler on 9/26/14. (CL, ) (Entered: 09/26/2014)
Set/Reset Deadlines/Hearings: Notice regarding remaining claims due by 10/8/2014. Status Conference set for 10/21/2014 11:30 AM in Courtroom 26A before Judge Gladys Kessler. (CL, ) (Entered: 09/26/2014)
195 Consent MOTION for Extension of Time to file Joint Notice and Set Status Conference by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 10/03/2014)
196 ORDER granting 195 Motion for Extension of Time to. Signed by Judge Gladys Kessler on 10−06−2014. (lcgk3, ) (Entered: 10/06/2014)
Set/Reset Hearings: Status Conference set for 10/30/2014, at 10:15 AM in Courtroom 26A before Judge Gladys Kessler. (tth) (Entered: 10/07/2014)
197 Consent MOTION for Extension of Time to File Joint Status Report Identifying Remaining Claims by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 10/17/2014)

10/20/2014
10/20/2014 10/22/2014 10/24/2014 10/29/2014
10/29/2014 10/29/2014 10/29/2014 11/04/2014
11/04/2014 11/05/2014 11/05/2014
11/05/2014
11/19/2014 11/20/2014 11/24/2014
11/30/2014 12/05/2014

MINUTE ORDER granting 197 Defendants' Consent Motion for Extension of Time; the Parties shall have up to and including October 24, 2014, in which to file their Joint Status Report identifying remaining claims. Signed by Judge Gladys Kessler on 10/20/14. (CL, ) (Entered: 10/20/2014)
Set/Reset Deadlines: Joint Status Report due by 10/24/2014 (CL, ). (Entered: 10/20/2014)
198 NOTICE of Appearance by Kieran Gavin Gostin on behalf of All Defendants (Gostin, Kieran) (Entered: 10/22/2014)
199 STATUS REPORT Joint Status Report re. Remaining Claims by UNITED STATES NAVY. (Hall, Christopher) (Entered: 10/24/2014)
MINUTE ORDER: The Status Conference now set for October 30, 2014, is hereby rescheduled to Wednesday, November 5, 2014, at 10:15 a.m.; if this proves to be inconvenient for the parties, they may file a Motion for Extension of Time. Signed by Judge Gladys Kessler on 10/29/14. (CL, ) (Entered: 10/29/2014)
Set/Reset Hearings: Status Conference set for 11/5/2014 10:15 AM in Courtroom 26A before Judge Gladys Kessler. (CL, ) (Entered: 10/29/2014)
MINUTE ORDER: The time for the Status Conference on November 5, 2014, is 10:30, not 10:15 a.m., as posted originally. Signed by Judge Gladys Kessler on 10/29/14. (CL, ) (Entered: 10/29/2014)
Set/Reset Hearings: Status Conference reset for 11/5/2014 10:30 AM in Courtroom 26A before Judge Gladys Kessler. (zmm, ) (Entered: 10/29/2014)
200 MEMORANDUM by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY. (Hall, Christopher) (Entered: 11/04/2014)
201 MEMORANDUM re Order by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 11/04/2014)
Minute Entry for proceedings held before Judge Gladys Kessler: Status Conference held on 11/5/2014. (Court Reporter: Chantal Geneus) (tth) (Entered: 11/05/2014)
202 ORDER that the Parties shall file, no later than Novemnber 20, 2014, a Joint Motion naming Plaintiffs to be dismissed due to their claims being time−barred; Defendants shall file their Dispositive Motion regarding jurisdiction no later than January 5, 2015; Plaintiffs' Opposition shall be due no later than March 6, 2015; and Defendants shall file their Reply no later than April 6, 2015. Signed by Judge Gladys Kessler on 11/5/14. (CL, ) (Entered: 11/05/2014)
Set/Reset Deadlines: Joint Motion naming Plaintiffs to be dismissed due by 11/20/2014. Dispositive Motions due by 1/5/2015. Response to Dispositive Motions due by 3/6/2015. Reply to Dispositive Motions due by 4/6/2015. (CL, ) (Entered: 11/05/2014)
203 MOTION to Amend/Correct 202 Order, by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 11/19/2014)
204 MOTION to Stay re 202 Order, Requiring Joint Motion by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 11/20/2014)
205 ORDER granting 204 Plaintiffs' Motion for a Stay of the Court's Order Requiring Parties to Provide a Joint Motion Listing Plaintiffs to be Dismissed Under Statute of Limitations. Signed by Judge Gladys Kessler on 11/24/14. (CL, ) (Entered: 11/24/2014)
206 ERRATA by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS 203 MOTION to Amend/Correct 202 Order, filed by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 11/30/2014)
207 Consent MOTION for Extension of Time to File Response/Reply as to 203 MOTION to Amend/Correct 202 Order, by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T.

12/08/2014
12/08/2014 12/18/2014
12/29/2014 12/29/2014 12/29/2014 01/05/2015 01/05/2015
01/08/2015 01/08/2015 01/08/2015
01/08/2015 01/12/2015 02/20/2015

JOHNSON, NAVY CHAPLAINCY, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 12/05/2014)
MINUTE ORDER granting 207 Defendants' Consent Motion for Extension of Time; Defendants' Opposition to Plaintiffs' Rule 54(b) Motion for Modification and/or Clarification shall be due on December 18, 2014; Plaintiffs' Reply, if any, shall be due on December 30, 2014. Signed by Judge Gladys Kessler on 12/8/14. (CL, ) (Entered: 12/08/2014)
Set/Reset Deadlines: Responses due by 12/18/2014 Replies due by 12/30/2014. (CL, ) (Entered: 12/08/2014)
208 Memorandum in opposition to re 203 MOTION to Amend/Correct 202 Order, filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY. (Hall, Christopher) (Entered: 12/18/2014)
209 Consent MOTION for Extension of Time to File Response/Reply as to 203 MOTION to Amend/Correct 202 Order, by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 12/29/2014)
MINUTE ORDER granting 209 Plaintiffs' Consent Motion for Extension of Time; Plaintiff shall have up to and including January 6, 2015, in which to file their Reply in Support of their Rule 54(b) Motion. Signed by Judge Gladys Kessler on 12/29/14. (CL, ) Modified on 12/30/2014 (znmw, ). (Entered: 12/29/2014)
Set/Reset Deadlines: Replies due by 1/6/2015. (CL, ) (Entered: 12/29/2014)
210 Consent MOTION for Extension of Time to File Response/Reply as to 203 MOTION to Amend/Correct 202 Order, by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 01/05/2015)
211 Consent MOTION for Extension of Time to File Defendants' Motion to Dismiss on Jurisdictional Grounds by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 01/05/2015)
MINUTE ORDER granting 210 Plaintiffs' Consent Motion for Extension of Time; Plaintiffs shall have up to and including January 12, 2015, in which to file their Reply in support of their Rule 54(b)Motion. Signed by Judge Gladys Kessler on 1/8/15. (CL, ) (Entered: 01/08/2015)
Set/Reset Deadlines: Replies due by 1/12/2015. (CL) (Entered: 01/08/2015)
MINUTE ORDER granting 211 Defendants' Consent Motion for Extension of Time; Defendants' Motion to Dismiss on Jurisdictional Grounds shall be due on February 20, 2015; Plaintiffs' Opposition shall be due on April 27, 2015; and Defendants' Reply shall be due on May 29, 2015. Signed by Judge Gladys Kessler on 1/8/15. (CL, ) (Entered: 01/08/2015)
Set/Reset Deadlines: Dispositive Motions due by 2/20/2015. Response to Dispositive Motions due by 4/27/2015. Reply to Dispositive Motions due by 5/29/2015. (CL, ) (Entered: 01/08/2015)
212 REPLY to opposition to motion re 203 MOTION to Amend/Correct 202 Order, filed by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 01/12/2015)
213 Consent MOTION for Extension of Time to File Jurisdictional Motion to Dismiss by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 02/20/2015)

02/23/2015 02/23/2015 02/27/2015
02/27/2015 03/03/2015
04/30/2015 04/30/2015 04/30/2015 05/19/2015 05/20/2015 05/26/2015 05/27/2015 05/27/2015 06/23/2015

214 ORDER granting 213 the Consent Motion for Extension of Time; Defendants' Motion to Dismiss shall be due on or before February 27, 2015; Plaintiffs' Opposition shall be due on or before May 4, 2015; and Defendants' Reply shall be due on June 5, 2015. Signed by Judge Gladys Kessler on 2/23/15. (CL, ) (Entered: 02/23/2015)
Set/Reset Deadlines: Defendants' Motion to Dismiss due by 2/27/2015. Plaintiffs' Opposition due by 5/4/2015. Defendants' Reply due by 6/5/15. (CL, ) (Entered: 02/23/2015)
215 Consent MOTION for Leave to File Excess Pages in Support of Defendants' Motion to Dismiss on Jurisdictional Grounds by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Attachments: # 1 Exhibit Motion to Dismiss and Proposed Memorandum in Excess of Page Limitations in Support Thereof, # 2 Exhibit A to MTD, # 3 Exhibit B to MTD, # 4 Exhibit C to MTD, # 5 Exhibit D to MTD, # 6 Exhibit E to MTD, # 7 Exhibit F to MTD, # 8 Exhibit G to MTD, # 9 Exhibit H to MTD, # 10 Exhibit I to MTD, # 11 Exhibit J to MTD, # 12 Exhibit K to MTD, # 13 Exhibit L to MTD, # 14 Exhibit M to MTD, # 15 Text of Proposed Order Proposed Order Granting Motion to Dismiss, # 16 Text of Proposed Order Proposed Order Granting Defendants' Consent Motion for Leave to File Memorandum in Excess of Page Limitations in Support of Motion to Dismiss)(Hall, Christopher) (Entered: 02/27/2015)
217 MOTION to Dismiss by UNITED STATES NAVY (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Text of Proposed Order)(znmw, ) (Entered: 03/04/2015)
216 ORDER granting 215 Defendants' Consent Motion for Leave to File Excess Pages; Exhibit 1 attached to Defendants' Motion, consisting of Defendants' Motion to Dismiss and Proposed Memorandum in Support thereof, together will all supporting materials, shall be deemed filed as of Friday, February 27, 2015. Signed by Judge Gladys Kessler on 3/3/15. (CL, ) (Entered: 03/03/2015)
218 Consent MOTION for Extension of Time to File Response by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 04/30/2015)
219 ORDER granting 218 Plaintiffs' Motion for Extension of Time; Plaintiffs' shall have up to and including July 7, 2015, in which to respond to Defendants' Motion to Dismiss on Jurisdictional Grounds. Signed by Judge Gladys Kessler on 4/30/15. (CL, ) (Entered: 04/30/2015)
Set/Reset Deadlines: Responses due by 6/4/2015. Replies due by 7/7/2015. (CL, ) (Entered: 04/30/2015)
220 Unopposed MOTION to Withdraw as Attorney for CFGC by CHAPLAINCY OF FULL GOSPEL CHURCHES (Attachments: # 1 Exhibit LCvR 83.6(c) Notice, # 2 Text of Proposed Order)(Schulcz, Arthur) (Entered: 05/19/2015)
221 ORDER granting 220 the Motion of Arthur A. Schulcz, Sr. to Withdraw as Attorney as CFGC's counsel. Signed by Judge Gladys Kessler on 5/20/15. (CL, ) (Entered: 05/20/2015)
222 Unopposed MOTION for Extension of Time to File Response/Reply by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 05/26/2015)
223 ORDER granting 222 Plaintiffs' Consent Motion for Extension of Time; Plaintiffs shall have up to and including June 25, 2015, in which to file their response to Defendants' Motion to Dismiss; Defendants shall file their Reply no later than July 27, 2015. Signed by Judge Gladys Kessler on 5/27/15. (CL) (Entered: 05/27/2015)
Set/Reset Deadlines: Responses due by 6/25/2015 Replies due by 7/27/2015. (CL) (Entered: 05/27/2015)
224 Consent MOTION for Extension of Time to File Response/Reply to Defendant's Motion to Dismiss by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 06/23/2015)

06/24/2015 06/24/2015 07/08/2015 07/09/2015 07/09/2015 08/03/2015
08/04/2015
08/04/2015 08/04/2015

MINUTE ORDER granting 224 Plaintiffs' Consent Motion for Extension of Time; Plaintiff shall have up to and including July 13, 2015, in which to file their Opposition to Defendants' Motion to Dismiss; Defendants' shall have up to and including August 14, 2015, in which to file their Reply. Signed by Judge Gladys Kessler on 6/24/15. (CL) (Entered: 06/24/2015)
Set/Reset Deadlines: Responses due by 7/13/2015. Replies due by 8/14/2015. (CL) (Entered: 06/24/2015)
225 Consent MOTION for Extension of Time to File Response/Reply to Defendants' Motion to Dismiss, ECF 214 by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 07/08/2015)
226 ORDER granting 225 Plaintiffs' Consent Motion for Extension of Time; Plaintiffs shall have up to and including August 3, 2015, in which to file their Response to Defendants' Motion to Dismiss; Defendants shall have up to and including September 3, 2015, in which to file their Reply. Signed by Judge Gladys Kessler on 7/9/15. (CL) (Entered: 07/09/2015)
Set/Reset Deadlines: Responses due by 8/3/2015. Replies due by 9/3/2015. (CL) (Entered: 07/09/2015)
229 Memorandum in opposition to re 217 MOTION to Dismiss filed by ROBERT H. ADAIR, ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS, RICHARD L. ARNOLD, ASSOCIATED GOSPEL CHURCHES, RAY A. BAILEY, MICHAEL BELT, WILLIAM C. BLAIR, GEORGE P. BYRUM, MARTHA CARSON, CHAPLAINCY OF FULL GOSPEL CHURCHES, GREGORY R. DE MARCO, LARRY FARRELL, DAVID L GIBSON, FURNISS HARKNESS, MARK R. JOHNSTON, KLON K. KITCHEN, JR, MICHAEL LAVELLE, GEORGE W. LINZEY, DENISE Y. MERRITT, TIMOTHY D. NALL, ROBERT DUANE PURSER, RAFAEL J. QUILES, DANIEL E. ROYSDEN, THOMAS RUSH, MARY HELEN SPALDING, LYLE SWANSON, JAMES M. WEIBLING, DAVID S. WILDER, JOHN WITHERSPOON, MICHAEL A. WRIGHT. (See Docket Entry 227 to view Exhibits 1−36 of the Opposition) (td) Modified on 8/5/2015 (znmw). (Entered: 08/04/2015)
227 Consent MOTION for Leave to File Excess Pages for Response to Defs' MTD by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A Opposition to MTD, # 3 Exhibit 1 to Opp,l ist of misstatmnts, # 4 Exhibit 2 to Opp, CHC goaling, # 5 Exhibit 3 to Opp, CNO Memo, # 6 Exhibit 4 to Opp, FY08 fgc, # 7 Exhibit 5 to Opp FY 09 fgc,, # 8 Exhibit 6 to Opp, FY 10, # 9 Exhibit 7 to Opp, Joint Motion, # 10 Exhibit 8 to Opp, Denom still matters, # 11 Exhibit 9 to Opp, Cong ltr re Modder, # 12 Exhibit 10 to Opp, Hendricks decl, # 13 Exhibit 11 to Opp PPA 110, # 14 Exhibit 12 to Opp, Pls CAS, # 15 Exhibit 13 toOpp, 2014 Rctng reslts, # 16 Exhibit 14 toOpp, Brown Decl, # 17 Exhibit 15 to Opp Lyles Orders, # 18 Exhibit 16 Byrum to CAPT, # 19 Exhibit 17 Rel Affil Study, # 20 Exhibit 18 Ellis Affid, # 21 Exhibit 19 CHC 5 yr plan, # 22 Exhibit 20 FY 87 FGC goals, # 23 Exhibit 21 Wilder Decl, # 24 Exhibit 22 Ableson Mscndct Memo, # 25 Exhibit 23 CHC Mscndt rates, # 26 Exhibit 24 Ableson fgc Decl, # 27 Exhibit 25 1999 CHC Brief, # 28 Exhibit 26 Poe Decl, # 29 Exhibit 27 Naples Memo, # 30 Exhibit 28 Colon Decl, # 31 Exhibit 29 Wohlrahbe Stmt, # 32 Exhibit 30 Roysden summary, # 33 Exhibit 31 Roysden Culture, # 34 Exhibit 32A Gomulka email, # 35 Exhibit 32B Gomulka, part 2, # 36 Exhibit 33 Leapman Decl, # 37 Exhibit 34 Shudnow Decl, # 38 Exhibit 35 DeMarco Decl, # 39 Exhibit 36 AAS Decl, # 40 Text of Proposed Order)(Schulcz, Arthur) (Entered: 08/04/2015)
228 ORDER granting 227 Plaintiffs' Consent Motion for Leave to File Excess Pages; it is further ORDERED that Exhibit A to the instant Consent Motion, comprised of Plaintiffs' Response to Defendants' Motion to Dismiss on Jurisdictional Grounds, together with all supporting materials, shall be deemed filed as of Monday, August 3, 2015. Signed by Judge Gladys Kessler on 8/4/15. (CL) (Entered: 08/04/2015)
230 Consent MOTION for Extension of Time to File Response/Reply by 4 hours and 55 minutes by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y.

08/05/2015 09/03/2015
09/08/2015 09/08/2015 09/25/2015
09/28/2015 09/28/2015 10/09/2015
02/09/2016 02/09/2016 03/16/2016 03/16/2016 10/03/2016 10/03/2016 10/14/2016

MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 08/04/2015)
231 ORDER granting 230 Plaintiffs' Consent Motion an Enlargement by Four Hours and Fifty−Five Minutes of Time to File Response in Opposition to Defendants' Motion to Dismiss. Signed by Judge Gladys Kessler on 8/5/15. (CL) (Entered: 08/05/2015)
232 Consent MOTION for Extension of Time to File Response/Reply In Support of Defendants' Motion to Dismiss on Jurisdictional Grounds by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 09/03/2015)
233 ORDER granting 232 Defendants' Consent Motion for Extension of Time; Defendants shall have up to and including September 25, 2015, in which to file any Reply in Support of their Motion to Dismiss on Jurisdictional Grounds. Signed by Judge Gladys Kessler on 9/8/15. (CL) (Entered: 09/08/2015)
Set/Reset Deadlines: Replies due by 9/25/2015. (CL) (Entered: 09/08/2015)
234 Consent MOTION for Extension of Time to File Response/Reply in support of Defendants' Motion to Dismiss on Jurisdictional Grounds by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Hall, Christopher) (Entered: 09/25/2015)
MINUTE ORDER granting 234 Defendants' Consent Motion for Extension of Time; Defendants shall have up to and including October 9, 2015, in which to file their Reply in Support of their Motion to Dismiss on Jurisdictional Grounds. Signed by Judge Gladys Kessler on 9/28/15. (CL) (Entered: 09/28/2015)
Set/Reset Deadlines: Replies due by 10/9/2015. (CL) (Entered: 09/28/2015)
235 REPLY to opposition to motion re 217 MOTION to Dismiss on Jurisdictional Grounds filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY. (Attachments: # 1 Exhibit A)(Hall, Christopher) (Entered: 10/09/2015)
236 ORDER denying 203 Plaintiffs' Motion for Modification and/or Clarification of the Court's Decision to Dismiss Certain Plaintiffs Under the Statute of Limitations. Signed by Judge Gladys Kessler on 2/9/16. (CL) (Entered: 02/09/2016)
237 MEMORANDUM OPINION to the Order denying the Plaintiffs' Motion for Modification and/or Clarification. Signed by Judge Gladys Kessler on 2/9/16. (CL) (Entered: 02/09/2016)
238 ORDER granting in part and denying in part 217 Defendants' Motion to Dismiss (see Order for details). Signed by Judge Gladys Kessler on 3/16/16. (CL) (Entered: 03/16/2016)
239 MEMORANDUM OPINION to the Order granting in part and denying in part Defendants' Motion to Dismiss. Signed by Judge Gladys Kessler on 3/16/16. (CL) (Entered: 03/16/2016)
MINUTE ORDER: A Status Conference is hereby set in this case for October 31, 2016, at 10:30 a.m. Signed by Judge Gladys Kessler on 10/3/16. (CL) (Entered: 10/03/2016)
Set/Reset Hearings: Status Conference set for 10/31/2016 at 10:30 AM in Courtroom 26A before Judge Gladys Kessler. (CL) (Entered: 10/03/2016)
240 Consent MOTION for Order Rescheduling Status Conference by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 10/14/2016)

10/17/2016
10/17/2016 10/25/2016
11/09/2016 11/10/2016
11/10/2016
11/17/2016 11/18/2016 11/18/2016
12/22/2016
01/04/2017 01/04/2017

241 ORDER granting 240 Plaintiffs' Consent Motion for Order Rescheduling Status Conference; the Status Conference now set for October 31, 2016, is hereby rescheduled for Thursday, November 17, 2016, at 11:00 a.m.; the Parties will file their respective concepts on how best to move the case forward on or before Thursday, November 10, 2016. Signed by Judge Gladys Kessler on 10/17/16. (CL) (Entered: 10/17/2016)
Set/Reset Deadlines/Hearings: Status Report on how to best move the case forward due by 11/10/2016. Status Conference set for 11/17/2016 at 11:00 AM in Courtroom 26A before Judge Gladys Kessler. (CL) (Entered: 10/17/2016)
242 Unopposed MOTION to Amend/Correct 238 Order on Motion to Dismiss by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, ASSOCIATED GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 10/25/2016)
243 ORDER denying 169 Plaintiffs' Renewed Motion to Strike the Testimony of Defendants' Expert Witness, Dr. Bernard Siskin, Ph.D., Under Federal Rules of Evidence 702 or 403 (see Order for details). Signed by Judge Gladys Kessler on 11/9/16. (CL) (Entered: 11/09/2016)
244 RESPONSE TO ORDER OF THE COURT re 241 Order Defendant's Updated Case Management Proposal by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Hall, Christopher) Modified event title on 11/14/2016 (znmw). (Entered: 11/10/2016)
245 RESPONSE TO ORDER OF THE COURT re 241 Order on Motion for Order, by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING. (Attachments: # 1 Exhibit 1 Belanus Memo, # 2 Exhibit 2 Pls Discovery)(Schulcz, Arthur) Modified event title on 11/14/2016 (znmw). (Entered: 11/10/2016)
Minute Entry for proceedings held before Judge Gladys Kessler: Status Conference held on 11/17/2016. (Court Reporter: Crystal Pilgrim) (tth) (Entered: 11/17/2016)
246 ORDER setting forth the schedule that this case shall follow (see Order for details); the existing bar against further discovery shall continue until further notice. Signed by Judge Gladys Kessler on 11/18/16. (CL) (Entered: 11/18/2016)
Set/Reset Deadlines: Plaintiffs' Opening Brief deadlines: 1/23/17, 6/14/2017, and 10/16/2017; Defendants' Opposition/response and cross−motion for summary judgment deadlines: 2/24/2017, 7/14/2017, and 11/16/2016; Plaintiffs' reply and response to Defendants' cross−motion for summaryJudgment deadlines: 3/23/2017, 8/1/2017, and 12/1/2017; Defendants' reply to Plaintiffs' Response deadlines: 4/14/2017, 8/15/2017, and 12/15/2017. (tth) (Entered: 12/05/2016)
247 MEMORANDUM re 246 Order by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING. (Attachments: # 1 Exhibit 1 Bd Mbrs 1977−2002, # 2 Exhibit 2 CHC Bd Mbrs 1949−69, # 3 Exhibit 3 DODIG Report redactions, # 4 Exhibit 4 Pg.24 wo redaction, # 5 Exhibit 5 Holderby redacted testmy, # 6 Exhibit 6 Bd Mbrs Testmny redated)(Schulcz, Arthur) (Entered: 12/22/2016)
248 ORDER granting 242 Plaintiffs' Unopposed Motion for an Order Dismissing The Associated Gospel Churches as a Plaintiff in its Own Right and as an Organizational Representative on Behalf of Its Chaplain Candidates Under Rule 60(a) (see Order for details). Signed by Judge Gladys Kessler on 1/4/17. (CL) (Entered: 01/04/2017)
249 MOTION for Extension of Time to File Answer , Consent MOTION for Extension of Time to File Opening Brief by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1

01/05/2017 01/05/2017 01/06/2017 01/06/2017 01/10/2017 02/12/2017
03/15/2017
03/17/2017 03/17/2017

Text of Proposed Order)(Schulcz, Arthur) (Entered: 01/04/2017)
250 ORDER granting 249 Plaintiffs' Consent Motion for an Order Reestablishing the Briefing Dates (see Order for details). Signed by Judge Gladys Kessler on 1/5/17. (CL) (Entered: 01/05/2017)
Set/Reset Deadlines: Summary Judgment motions due by 2/13/2017. Response to Motion for Summary Judgment due by 3/17/2017. Reply to Motion for Summary Judgment due by 3/10/2017. Cross Motions due by 3/17/2017. Response to Cross Motions due by 4/10/2017. Reply to Cross Motions due by 5/5/2017. (CL) (Entered: 01/05/2017)
251 NOTICE of Appearance by Andrew Evan Carmichael on behalf of All Defendants (Carmichael, Andrew) (Entered: 01/06/2017)
252 RESPONSE re 247 to Plaintiffs' Memorandum Supporting Limited Discovery filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY. (Carmichael, Andrew) Modified to add link on 1/9/2017 (znmw). (Entered: 01/06/2017)
253 ORDER that the Parties to this case shall continue to follow the long Scheduling Order laid out in Docket No. 246. Signed by Judge Gladys Kessler on 1/10/17. (CL) (Entered: 01/10/2017)
254 MOTION for Summary Judgment by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Exhibit 1 Navy EO Reg, # 2 Exhibit 2 DOD 7050 WPA, # 3 Exhibit 3 Poe Decl, # 4 Exhibit 4 Heinke Decl, # 5 Exhibit 5 Sturm Decl, # 6 Exhibit 6 Stuart Decl, # 7 Exhibit 7 Klapach Decl, # 8 Exhibit 8 Demy Decl, # 9 Exhibit 9 Ellison, # 10 Exhibit 10 Kitchen Decl, # 11 Exhibit 11 Kitchen Depo, # 12 Exhibit 12 Hamme Decl, # 13 Exhibit 13 Marsh Decl, # 14 Exhibit 14 Rush Depo, # 15 Exhibit 15 Linzey Decl, # 16 Exhibit 16 Roysden Depo, # 17 Exhibit 17 Belanus Memo, # 18 Exhibit 18 Burt Letter, # 19 Exhibit 19 Stafford Report, # 20 Exhibit 20 Extracts DODIG, # 21 Exhibit 21 Bd Mbrs NIG test, # 22 Exhibit 22 Holderb NIG test, # 23 Exhibit 23 NIG 97−98 Bds, # 24 Exhibit 24 Holderby DODIG Test, # 25 Exhibit 25 Black's Test to NIG, # 26 Exhibit 26 NIG 2000, # 27 Exhibit 27 Washburn Test, # 28 Exhibit 28 Baker NIG, # 29 Exhibit 29 CNA Prom Report, # 30 Exhibit 30 CNA Prom Rates, # 31 Exhibit 31 Old Wanings, # 32 Exhibit 32 Preferences, # 33 Exhibit 33 Fld Course Correct, # 34 Exhibit 34 Seasons Change, # 35 Exhibit 35 38 yrs of denom bias, # 36 Exhibit 36 Denom Charts, # 37 Exhibit 37 AAS Decl, # 38 Statement of Facts, # 39 Text of Proposed Order)(Schulcz, Arthur). Added MOTION for Order on 2/13/2017 (znmw). (Entered: 02/12/2017)
255 MOTION to Lift Stay on Discovery by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Exhibit 1 Sturm AD CHC Bds, # 2 Exhibit 2 FY 77−02 Bd Mebrs, # 3 Exhibit 3 Sturm Inactive Bd Mbrs, # 4 Exhibit 4 DODIG−Holderby Rept, # 5 Exhibit 5 Holderby unredacted, # 6 Exhibit 6 Holderby redacted, # 7 Exhibit 7 Bd Mbrs Redacted Test, # 8 Exhibit 8 RADm Burt Letter, # 9 Exhibit 9 Belanus Memo, # 10 Exhibit 10 Demy Declar., # 11 Exhibit 11 FY 49−02 Bd Mbrs, # 12 Exhibit 12 AAs Deecl, # 13 Text of Proposed Order)(Schulcz, Arthur) (Entered: 03/16/2017)
256 Consent MOTION for Extension of Time to File Response/Reply as to 255 MOTION to Lift Stay on Discovery, 254 MOTION for Summary Judgment MOTION for Order by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Carmichael, Andrew) (Entered: 03/17/2017)
257 ORDER granting 256 Defendants' Consent Motion for Extension of Time; Defendants' Opposition and Cross−Motion for Summary Judgment shall be due no later than March 24, 2017; Plaintiffs' Reply and Response to Defendants' Cross−Motion shall be due no later than April 17, 2017; Defendants' Reply to Plaintiffs' Response to Cross−Motion shall be due no later than May 12, 2017; Defendants shall file their

03/17/2017 03/24/2017 03/24/2017 03/24/2017 04/10/2017
04/11/2017
04/11/2017 04/14/2017
04/18/2017
04/19/2017 04/19/2017 04/24/2017
04/24/2017

Opposition to Plaintiffs' Motion to Lift the Discovery Stay no later than April 14, 2017. Signed by Judge Gladys Kessler on 3/17/17. (CL) (Entered: 03/17/2017)
Set/Reset Deadlines: Cross Motions due by 3/24/2017. Response to Cross Motions due by 4/17/2017. Reply to Cross Motions due by 5/12/2017. Defendants' Opposition to Plaintiffs' Motion to Lift the Discovery Stay due by 4/14/17 (CL) (Entered: 03/17/2017)
258 NOTICE of Appearance by Chetan A. Patil on behalf of All Defendants (Patil, Chetan) (Entered: 03/24/2017)
259 Memorandum in opposition to re 254 MOTION for Summary Judgment MOTION for Order filed by UNITED STATES NAVY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Text of Proposed Order)(Carmichael, Andrew) (Entered: 03/24/2017)
260 Cross MOTION for Summary Judgment by UNITED STATES NAVY (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Text of Proposed Order)(Carmichael, Andrew) (Entered: 03/24/2017)
261 Consent MOTION for Extension of Time to File Response/Reply as to 260 Cross MOTION for Summary Judgment and 259 Opposition to Summary Judgment by GEORGE W. LINZEY, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 04/10/2017)
262 ORDER granting 261 Plaintiffs' Consent Motion for Extension of Time to File their Reply to Defendants' Opposition and Plaintiffs' Opposition to Defendants' Cross−Motion for Summary Judgment; and for Defendants' Reply to Plaintiffs' Opposition to Defendants' Cross−Motion for Summary Judgment (see Order for details). Signed by Judge Gladys Kessler on 4/11/17. (CL) (Entered: 04/11/2017)
Set/Reset Deadlines: Response to Cross Motions due by 4/27/2017. Reply to Cross Motions due by 5/19/2017. Reply to Motion for Summary Judgment due by 4/27/2017. (CL) (Entered: 04/11/2017)
263 Memorandum in opposition to re 255 MOTION to Lift Stay on Discovery filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY. (Attachments: # 1 Exhibit A)(Patil, Chetan) (Entered: 04/14/2017)
264 Consent MOTION for Extension of Time to File Response/Reply to Opposition to Llift Discovery Stay, ECF 263 by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 04/18/2017)
265 ORDER granting 264 Plaintiffs' Consent Motion for Extension of Time; Plaintiffs shall have up to and including May 8, 2017, in which to file their Reply to Defendants' Opposition to Plaintiffs' Motion to Lift the Current Discovery Stay. Signed by Judge Gladys Kessler on 4/19/17. (CL) (Entered: 04/19/2017)
Set/Reset Deadlines: Replies due by 5/8/2017. (CL) (Entered: 04/19/2017)
266 REPLY to opposition to motion re 254 MOTION for Summary Judgment MOTION for Order on s 613 constitutionality as applied filed by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING. (Attachments: # 1 Statement of Facts Reply to Opp to Facts, # 2 Exhibit 38 Paul Depo, # 3 Exhibit 39 Navinst 1730.1, # 4 Exhibit 40 DOD 87 Study Rel Min, # 5 Exhibit 41 CNA CHC Brief, # 6 Exhibit 42 AAS Decl)(Schulcz, Arthur) (Entered: 04/24/2017)
267 Memorandum in opposition to re 260 Cross MOTION for Summary Judgment filed by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING. (Attachments: # 1 Exhibit 38 Paul's Depo, # 2 Exhibit 43 Bd Recorder NIG Test, # 3 Exhibit 44 Stafford DODIG test, # 4 Exhibit 45 AAS

05/08/2017
05/19/2017
06/12/2017
06/13/2017 06/19/2017 06/20/2017 06/21/2017
06/22/2017 06/22/2017 06/23/2017 06/23/2017

Decl, # 5 Statement of Facts, # 6 Text of Proposed Order)(Schulcz, Arthur) (Entered: 04/24/2017)
268 REPLY to opposition to motion re 255 MOTION to Lift Stay on Discovery filed by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING. (Attachments: # 1 Exhibit 13 Paul Depo, # 2 Exhibit 14 Leuba Declaration, # 3 Exhibit 15 Wilkins Mot 4 Adl Disc, # 4 Exhibit 16 Harkness 56(d), # 5 Exhibit 17 AAS Decl)(Schulcz, Arthur) (Entered: 05/08/2017)
269 REPLY to opposition to motion re 260 Cross MOTION for Summary Judgment filed by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY. (Carmichael, Andrew) (Entered: 05/19/2017)
270 Consent MOTION for Extension of Time to file Summary Judgment Briefs by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 06/12/2017)
271 ORDER granting 270 Plaintiffs' Consent Motion to Reestablish Filing Dates for Summary Judgment Briefing. Signed by Judge Gladys Kessler on 6/13/2017. (lcgk2, ) (Main Document 271 replaced on 6/19/2017) (ztth). (Main Document 271 replaced on 6/19/2017) (ztth). (Entered: 06/13/2017)
Set/Reset Deadlines: Opening Brief due by 6/21/2017. Response due by 7/28/2017. Reply due by 8/15/2017. Cross Motion due by 7/28/2017. Response to Cross Motion due by 8/15/2017. Reply due by 8/29/2017. (tth) (Entered: 06/19/2017)
272 STIPULATION re: Plaintiffs affected by Claim 2 by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit PLs & Selection Boards)(Schulcz, Arthur) (Entered: 06/20/2017)
273 Consent MOTION for Extension of Time to File Summary Judgment of Claim No. 2 by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 06/21/2017)
274 ORDER granting 273 Plaintiffs' Consent Motion for Extension of One Day to File their Opening Brief as to Claim 2; the Plaintiffs' Opening Brief is due on June 22, 2017. Signed by Judge Gladys Kessler on 6/22/17. (CL) (Entered: 06/22/2017)
Set/Reset Deadlines: Brief due by 6/22/2017. (CL) (Entered: 06/22/2017)
275 NOTICE of Attempted Filing on 6/22/17 by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN (Schulcz, Arthur) (Entered: 06/23/2017)
276 MOTION for Summary Judgment by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30, # 33 Exhibit 31, # 34 Exhibit 32, # 35 Exhibit 33, # 36 Exhibit 34, # 37 Exhibit 35, # 38 Exhibit 36, # 39 Exhibit 37, # 40 Exhibit 38, # 41 Exhibit 39, # 42 Exhibit 40, # 43 Exhibit 41, # 44 Exhibit 42, # 45 Exhibit 43, # 46 Exhibit 44, # 47 Exhibit 45, # 48 Exhibit 46)(jf) Modified on 6/23/2017 to add additional filers (jf). (Entered: 06/23/2017)

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08/04/2017
08/15/2017 08/16/2017 08/16/2017 09/06/2017

277 Consent MOTION for Order to Enlarge Time to File Summary Judgment Motion by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 06/26/2017)
278 ORDER granting 277 Plaintiffs' Consent Motion for Order enlarging their time to file their Summary Judgment Motion concerning Remaining Claim No. 2 by 14 hours and 36 minute, to 2:36 p.m. on Friday, June 23, 2017 and that the Summary Judgment Motion shall be considered filed within the appropriate time. Signed by Judge Gladys Kessler on 6/26/17. (CL) (Entered: 06/26/2017)
279 Consent MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion for Summary Judgment and Cross−Motion for Summary Judgment by DEPUTY CHIEF OF CHAPLAINS, BYRON HOLDERBY, JR, GERALD L. HOWEING, LOUIS V. IASIELLO, HANSFORD T. JOHNSON, SECRETARY OF DEPARTMENT OF NAVY, UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Carmichael, Andrew) (Entered: 07/26/2017)
280 ORDER granting 279 Defendant's Consent Motion for Extension of Time to File an Opposition to and Cross−Motion for Summary Judgment (see Order for details). Signed by Judge Gladys Kessler on 7/27/17. (CL) (Entered: 07/27/2017)
Set/Reset Deadlines: Cross Motions due by 8/4/2017. Response to Cross Motions due by 8/22/2017. Reply to Cross Motions due by 9/6/2017. Response to Motion for Summary Judgment due by 8/4/2017. Reply to Motion for Summary Judgment due by 8/22/2017. (CL) (Entered: 07/27/2017)
281 Memorandum in opposition to re 276 MOTION for Summary Judgment filed by UNITED STATES NAVY. (Attachments: # 1 Exhibit Black Decl., # 2 Exhibit Rock Decl., # 3 Exhibit SECNAVINST 1401.3, # 4 Exhibit FY95 CDR CHC Precept, # 5 Exhibit FY96 CAPT CHC Precept, # 6 Exhibit FY97 CDR CHC Precept, # 7 Exhibit FY97 CAPT CHC Precept, # 8 Exhibit FY97 CDR SER CHC Precept, # 9 Exhibit FY98 LCDR CHC Precept, # 10 Exhibit FY98 CDR CHC Precept, # 11 Exhibit FY98 CAPT SER CHC Precept, # 12 Exhibit FY99 LCDR CHC Precept, # 13 Exhibit FY99 CDR CHC Precept, # 14 Exhibit FY00 LCDR CHC Precept, # 15 Exhibit FY00 CDR CHC Precept, # 16 Exhibit FY01 LCDR CHC Precept, # 17 Exhibit FY01 CDR CHC Precept, # 18 Exhibit FY02 LCDR CHC Precept, # 19 Exhibit FY02 CDR CHC Precept, # 20 Exhibit FY02 CAPT CHC Precept, # 21 Exhibit Rock Dep., # 22 Exhibit Kagle Decl., # 23 Exhibit Buckley Decl., # 24 Exhibit Wilder Dep., # 25 Exhibit Klinger Decl., # 26 Exhibit Lanham Decl., # 27 Exhibit Siskin Report, # 28 Text of Proposed Order)(Carmichael, Andrew) (Entered: 08/04/2017)
282 Cross MOTION for Summary Judgment by UNITED STATES NAVY (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Text of Proposed Order)(Carmichael, Andrew) (Entered: 08/04/2017)
283 Consent MOTION for Extension of Time to File Response/Reply by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 08/15/2017)
284 ORDER granting 283 Plaintiffs' Consent Motion for Extension of Time; Plaintiffs shall have up to and including September 11, 2017, in which to file their Claim No. 2 Reply and Opposition to Defendants' Cross−Motion; Defendants shall have up to and including September 29, 2017, in which to file their Reply to Plaintiffs' Opposition. Signed by Judge Gladys Kessler on 8/16/17. (CL) (Entered: 08/16/2017)
Set/Reset Deadlines: Responses due by 9/11/2017 Replies due by 9/29/2017. (CL) (Entered: 08/16/2017)
285 Consent MOTION for Extension of Time to File Response/Reply by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN

09/06/2017 09/18/2017 09/18/2017
09/20/2017 09/22/2017 09/22/2017 09/25/2017
09/25/2017 09/26/2017

SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 09/06/2017)
286 ORDER granting 285 the Consent Motion for Extension of Time; Plaintiffs shall file their Claim No. 2 Reply and Opposition to Defendants' Cross−Motion on or before September 20, 2017; Defendants shall file their Reply to Plaintiffs' Opposition on or before October 13, 2017. Signed by Judge Ellen S. Huvelle on 9/6/17. (CL) (Entered: 09/06/2017)
287 Consent MOTION for Extension of Time to File Response/Reply by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 09/18/2017)
288 ERRATA by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING 287 Consent MOTION for Extension of Time to File Response/Reply filed by ROBERT DUANE PURSER, MARY HELEN SPALDING, DANIEL E. ROYSDEN, DENISE Y. MERRITT, ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON. (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 09/18/2017)
289 Consent MOTION for Extension of Time to File Response/Reply by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 09/21/2017)
290 ORDER granting 289 Plaintiffs' Consent Motion for Extension of Time; Plaintiff shall file their Reply and Opposition to Defendants' Cross−Motion on or before September 25, 2017; Defendant shall file its Reply to Plaintiffs' Opposition on or before October 20, 2017. Signed by Judge Randolph D. Moss on 9/22/17. (CL) (Entered: 09/22/2017)
Set/Reset Deadlines: Response to Cross Motions due by 9/25/2017. Reply to Cross Motions due by 10/20/2017. Replies due by 9/25/2017. (CL) (Entered: 09/22/2017)
291 REPLY to opposition to motion re 276 MOTION for Summary Judgment filed by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING. (Attachments: # 1 Statement of Facts Reply to Facts, # 2 Exhibit 47 02 LCDR Precept, # 3 Exhibit 48 CAPT Poe Decl, # 4 Exhibit 49 Shudnow Decl, # 5 Exhibit 50 CoC to Endorsers, # 6 Exhibit 51 Stewart Decl, # 7 Exhibit 52 CDR Klappert Decl, # 8 Exhibit 53 Gordy Decl, # 9 Exhibit 54 Merrit Decl, # 10 Exhibit 55 Johnson Decl, # 11 Exhibit 56 Wright Decl, # 12 Exhibit 57 Harkness, # 13 Exhibit 58 CHC misconduct, # 14 Exhibit 59 CHC Qual Impr Plan, # 15 Exhibit 60 DA MOI 600−2, # 16 Exhibit 61 Holmes BCNR, # 17 Exhibit 62 Klapach Decl, # 18 Exhibit 63 Dr Leuba boards, # 19 Exhibit Atach to Ex 63, # 20 Exhibit 64 AAS Decl)(Schulcz, Arthur) (Entered: 09/25/2017)
292 MOTION to Stay Defendant's Sum Judgment Motion under Rule 56(d) by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Exhibit 1 Rule 56(d) Decl, # 2 Text of Proposed Order)(Schulcz, Arthur) (Entered: 09/25/2017)
293 Memorandum in opposition to re 282 Cross MOTION for Summary Judgment filed by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING. (Attachments: # 1 Statement of Facts, # 2 Exhibit 1 Sturm Docs, # 3 Exhibit 2 Surm Bd Mbrs, # 4 Exhibit 3 FY 77−02 Bd Mbrs, # 5 Exhibit 4 FY 49−02 Bd Mbrs, # 6 Exhibit 5 Wilkins v Leman, # 7 Exhibit 6 Duke Affid, # 8 Exhibit 7 Wilkins Depo, # 9 Exhibit 8 SERB mbr denom, # 10 Exhibit 9 DODIG 97−98 Bds, # 11 Exhibit 10 Demy Delc, # 12 Exhibit 11 Rock Depo, # 13 Exhibit 12 Holderby 2 IG, # 14 Exhibit 13 Wright Depo, # 15 Exhibit 14 1401.3, # 16 Exhibit 15 Rock Decl, # 17 Exhibit 16 CNA Study, # 18 Exhibit 17 CNA Prom Stats, # 19 Exhibit 18 Reference, # 20 Exhibit 19 Siskin Conjecture, # 21 Exhibit 20 Prom

09/26/2017
09/27/2017 10/02/2017 10/06/2017
10/12/2017 10/13/2017
11/03/2017 11/03/2017 11/10/2017
01/05/2018

Bd Tiers, # 22 Exhibit 21 Old Warnings, # 23 Exhibit 22 Failed Correct, # 24 Exhibit 23 Access & Prom, # 25 Exhibit 24 Stafford Rpt, # 26 Exhibit 25 Stafford test 2 IG, # 27 Exhibit 26 Bd Speclst, # 28 Exhibit 27 Min Guid, # 29 Exhibit 28 Bd Mbr to NIG, # 30 Exhibit 29 Paul Depo, # 31 Exhibit 38 NIG CAPT Bd 2000, # 32 Exhibit 31 Black NIG Test, # 33 Exhibit 32 Washburn, # 34 Exhibit 33 K Kitchen depo, # 35 Exhibit 34 Ellison Decl, # 36 Exhibit 35 Stewart Decl, # 37 Exhibit 36 1730.1d, # 38 Exhibit 37 DODI 130021, # 39 Exhibit 38 Bouck Study, # 40 Exhibit 39 Bouck Ltr 2 Sec N, # 41 Exhibit 40 McNamarah 2 Ast Sec, # 42 Exhibit 41 Talbot Resp 2 M, # 43 Exhibit 42 CHC Rel Pref Study, # 44 Exhibit 43 Roysden Depos, # 45 Exhibit 44 Leuba one RC decl, # 46 Exhibit 45 Holderby NIG, # 47 Exhibit 46 AAS Decl, # 48 Exhibit 02 LCDR Precept, # 49 Exhibit 48 Poe Decl, # 50 Exhibit 49 Shudnow, # 51 Exhibit 50 CoC Rmrks to Endorser, # 52 Exhibit 51 Stewart 2, # 53 Exhibit 52 Klapper Decl, # 54 Exhibit 53 Gordy, # 55 Exhibit 54 Meritt Decl, # 56 Exhibit 55 Johnson, # 57 Exhibit 56 Wright, # 58 Exhibit 57 Harkness, # 59 Exhibit 58 CHC Misconduct, # 60 Exhibit 59 CHC qual Imp Pl, # 61 Exhibit 60DA MOI 600−2, # 62 Exhibit 61 LT Holmes BCNR, # 63 Exhibit 62Klapach, # 64 Exhibit 63 Leuba Bds, # 65 Exhibit 64 AAS Decl, # 66 Exhibit PSJ Facts, # 67 Text of Proposed Order)(Schulcz, Arthur) (Entered: 09/26/2017)
294 Consent MOTION for Extension of Time to File Response/Reply by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 09/26/2017)
295 ORDER granting 294 Plaintiffs' Consent Motion for Extension of Time; Plaintiffs' time to file Claim No. 2 Opposition to Defendants' Cross−Motion is extended by six hour and 46 minutes until Tuesday, September 26, 2017, at 6:26 a.m. Signed by Judge Randolph D. Moss on 9/27/17. (CL) (Entered: 09/27/2017)
Case randomly reassigned to Judge John D. Bates. Judge Gladys Kessler has retired and is no longer assigned to the case. (ztnr) (Entered: 10/02/2017)
296 Consent MOTION for Extension of Time to File Defs Reply & Opp. to Rule 56(d) motion and Reset Parties' Claim No. 3 Briefings by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 10/06/2017)
297 ORDER granting 296 plaintiffs' consent motion to reset deadlines. See text of Order for details. Signed by Judge John D. Bates on 10/12/2017. (lcjdb1) (Entered: 10/12/2017)
Set/Reset Deadlines: Cross Motion due by 2/16/2018. Response to Cross Motion due by 4/2/2018. Reply to Cross Motion due by 4/23/2018. Response due by 11/3/2017 Reply due by 11/3/2017. Summary Judgment motion due by 1/16/2018. Response to Motion for Summary Judgment due by 2/16/2018. Reply to Motion for Summary Judgment due by 4/2/2018. (tb) (Entered: 10/13/2017)
298 REPLY to opposition to motion re 282 Cross MOTION for Summary Judgment filed by UNITED STATES NAVY. (Patil, Chetan) (Entered: 11/03/2017)
299 Memorandum in opposition to re 292 MOTION to Stay Defendant's Sum Judgment Motion under Rule 56(d) filed by UNITED STATES NAVY. (Patil, Chetan) (Entered: 11/03/2017)
300 REPLY to opposition to motion re 292 MOTION to Stay Defendant's Sum Judgment Motion under Rule 56(d) filed by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING. (Schulcz, Arthur) (Entered: 11/10/2017)
301 Consent MOTION for Extension of Time to File Summary Judgment by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 01/05/2018)

01/11/2018 01/17/2018
01/31/2018
02/14/2018 02/16/2018 02/20/2018 02/23/2018 02/26/2018 02/27/2018 03/01/2018 03/02/2018 03/16/2018 03/22/2018

302 ORDER granting 301 plaintiff's consent motion for an extended briefing schedule. See text of Order for details. Signed by Judge John D. Bates on 1/11/2018. (lcjdb1) (Entered: 01/11/2018)
Set/Reset Deadlines/Hearings: Cross Motion due by 4/20/2018. Response to Cross Motion due by 6/1/2018. Reply to Cross Motion due by 6/29/2018. Summary Judgment motion due by 3/9/2018. Response to Motion for Summary Judgment due by 4/20/2018. Reply to Motion for Summary Judgment due by 6/1/2018. Motion Hearing set for 7/17/2018 at 10:00 AM in Courtroom 30A before Judge John D. Bates. (tb) (Entered: 01/17/2018)
303 MOTION to Stay Staying Summary Judgment Briefing by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Exhibit 1 Rule 56(d) Declarat, # 2 Exhibit 2 CNA Prom Data, # 3 Exhibit 3 DODI 1300.21 CoC, # 4 Exhibit 4 OPNAV1730.1, # 5 Exhibit 5 DOD Chap Report 2 Cong, # 6 Text of Proposed Order)(Schulcz, Arthur) Modified event title on 2/1/2018 (znmw). (Entered: 01/31/2018)
304 Memorandum in opposition to re 303 MOTION to Stay filed by UNITED STATES NAVY. (Patil, Chetan) (Entered: 02/14/2018)
305 Emergency MOTION to Modify SJ Briefing Procedures and Deadlines by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order Alternative Order)(Schulcz, Arthur) (Entered: 02/16/2018)
306 REPLY to opposition to motion re 303 MOTION to Stay Pase III Summary Judgment Briefing filed by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING. (Schulcz, Arthur) (Entered: 02/20/2018)
307 Memorandum in opposition to re 305 Emergency MOTION to Modify SJ Briefing Procedures and Deadlines filed by UNITED STATES NAVY. (Patil, Chetan) (Entered: 02/23/2018)
308 REPLY to opposition to motion re 305 Emergency MOTION to Modify SJ Briefing Procedures and Deadlines filed by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, GEORGE W. LINZEY, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN. (Schulcz, Arthur) (Entered: 02/26/2018)
309 NOTICE of Subsequent Event Relevant to ECF 303 by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Schulcz, Arthur) (Entered: 02/27/2018)
310 ORDER denying 303 motion to stay and granting in part and denying in part 305 motion to modify the summary judgment briefing schedule. See text of Order for details. Signed by Judge John D. Bates on 3/1/2018. (lcjdb1) (Entered: 03/01/2018)
Set/Reset Deadlines: Cross Motion due by 4/27/2018. Response to Cross Motion due by 6/8/2018. Reply to Cross Motion due by 7/6/2018. Summary Judgment motion due by 3/16/2018. Response to Motion for Summary Judgment due by 4/27/2018. Reply to Motion for Summary Judgment due by 6/8/2018. (tb) (Entered: 03/02/2018)
311 Joint MOTION for Extension of Time to File Pase III Summary Judgment Briefings by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 03/16/2018)
312 Consent MOTION for Extension of Time to File Phase III Summary Judgment Motion by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz,

03/22/2018
03/23/2018 03/25/2018 04/03/2018 04/04/2018 04/04/2018 05/07/2018

Arthur) (Entered: 03/22/2018)
313 MOTION for Summary Judgment Phase III Summary Judgment Motion by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Exhibit 1 DoD 1304.19, # 2 Exhibit 2 DODI 1304.28, # 3 Exhibit 3 Richardson Decl, # 4 Exhibit 4 CHC History, # 5 Exhibit 5 SecNav 1730.7B, # 6 Exhibit 6 Naval Regs, # 7 Exhibit 7 Opnav 3461, # 8 Exhibit 8 Chap Manual, # 9 Exhibit 9 SecNav 1000.9, # 10 Exhibit 10 Poe Declaration, # 11 Exhibit 11 G. Heinke, # 12 Exhibit 12 Sturm Decl, # 13 Exhibit 13 Klapach, # 14 Exhibit 14 Active Of Prom Brf, # 15 Exhibit 15 Blackball Voting mach, # 16 Exhibit 16 Recdr rept on bad Briefer, # 17 Exhibit 17 Holderby NIG testimony, # 18 Exhibit 18 Holderby DODIG test, # 19 Exhibit 19 97−98 Bd NIG, # 20 Exhibit 20 Stewart Decl, # 21 Exhibit 21 List of Recdrs want 2 talk, # 22 Exhibit 22 Tim Demy Decl, # 23 Exhibit 23 Ellison Decl, # 24 Exhibit 24 K Kitchen Decl, # 25 Exhibit 25 Kitchen Depo, # 26 Exhibit 26 Hamme Decl, # 27 Exhibit 27 Marsh Decl, # 28 Exhibit 28 Rush Depo, # 29 Exhibit 29 Linzey Decl, # 30 Exhibit 30 Burt Letter to AS, # 31 Exhibit 31 Holmes BCNR applic, # 32 Exhibit 32 Roysden Depo, # 33 Exhibit 33 Stafford REport, # 34 Exhibit 34 DODIG Extracts, # 35 Exhibit 35 Board Mbrs NIG test, # 36 Exhibit 36 Washburn NIG, # 37 Exhibit 37 Black's NIG Test, # 38 Exhibit 38 Washburn NIG test, # 39 Exhibit 39 Baker NIG, # 40 Exhibit 40 Leuba Prom Not Neut, # 41 Exhibit 41, # 42 Exhibit 42 CNA Prom Study, # 43 Exhibit 43 CNA Promot %, # 44 Exhibit 44 Old Warnings, # 45 Exhibit 45 Preferences, # 46 Exhibit 46 Failed Course Correct, # 47 Exhibit 47 Seasons Change, # 48 Exhibit 48 Addendal, # 49 Exhibit 49 Appendx M, # 50 Exhibit 50 Siskin Conjecture, # 51 Exhibit 51 Navy argmt in Wilkins, # 52 Exhibit 52 IG Resp 2 Sen. Santorum, # 53 Exhibit 53 Belanus Memo of SER, # 54 Exhibit 54 DOD Report on Ch ps, # 55 Exhibit 55 Denom Charts on Time, # 56 Exhibit 56 AAs Decl, # 57 Statement of Facts, # 58 Text of Proposed Order)(Schulcz, Arthur) (Entered: 03/22/2018)
MINUTE ORDER: Upon consideration of 312 plaintiffs' consent motion for an extension of time to file their motion for summary judgment, and the entire record herein, it is hereby ORDERED that the motion is GRANTED nunc pro tunc; and it is further ORDERED that 313 plaintiffs' motion for summary judgment is deemed timely filed. SO ORDERED. Signed by Judge John D. Bates on 3/23/2018. (lcjdb1) (Entered: 03/23/2018)
314 ERRATA to SJ Motion by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING 313 MOTION for Summary Judgment Phase III Summary Judgment Motion filed by ROBERT DUANE PURSER, MARY HELEN SPALDING, DANIEL E. ROYSDEN, DENISE Y. MERRITT, ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON. (Attachments: # 1 Exhibit A Corrected page)(Schulcz, Arthur) (Entered: 03/25/2018)
315 Consent MOTION to ClarifyCourt's Minute Order of March 23, 2018 by UNITED STATES NAVY (Attachments: # 1 Text of Proposed Order)(Patil, Chetan) (Entered: 04/03/2018)
316 ORDER granting 315 defendant's motion to clarify and 311 the parties' joint motion for an extended briefing schedule. See text of Order for details. Signed by Judge John D. Bates on 4/4/2018. (lcjdb1) (Main Document 316 replaced on 4/4/2018 to include time of hearing.) (ztnr) (Entered: 04/04/2018)
Set/Reset Deadlines/Hearings: Defendant's Response in Opposition to Plaintiffs' Motion for Summary Judgment and Defendant's Cross Motion for Summary Judgment due by 5/7/18; Plaintiffs' Reply in Support of Plaintiffs' Motion for Summary Judgment and Plaintiffs' Response in Opposition to Defendant's Cross Motion for Summary Judgment due by 6/18/18; Defendant's Reply in Support of Defendant's Cross Motion for Summary Judgment due by 7/16/18; Motions Hearing rescheduled from 7/17/18 to 7/19/18 at 10:00 AM in Courtroom 30A before Judge John D. Bates. (kk) (Entered: 04/04/2018)
317 Memorandum in opposition to re 313 MOTION for Summary Judgment Phase III Summary Judgment Motion filed by UNITED STATES NAVY. (Attachments: # 1 Exhibit Black Decl., # 2 Exhibit Dunford Decl., # 3 Exhibit Rock Decl., # 4 Exhibit

05/07/2018
05/21/2018 05/29/2018 05/29/2018 05/30/2018 05/30/2018 06/18/2018 06/19/2018

SECNAVINST 1401.3, # 5 Exhibit SECNAVINST 1401.3A, # 6 Exhibit Buckley Decl., # 7 Exhibit FY03 CAPT CHC Precept, # 8 Exhibit FY03 CDR CHC Precept, # 9 Exhibit FY04 CAPT CHC Precept, # 10 Exhibit FY04 CDR CHC Precept, # 11 Exhibit FY04 LCDR CHC Precept, # 12 Exhibit FY05 CAPT CHC Precept, # 13 Exhibit FY05 CDR CHC Precept, # 14 Exhibit FY05 LCDR CHC Precept, # 15 Exhibit FY06 CAPT CHC Precept, # 16 Exhibit FY06 CDR CHC Precept, # 17 Exhibit FY06 LCDR CHC Precept, # 18 Exhibit FY07 CAPT CHC Precept, # 19 Exhibit FY07 CDR CHC Precept, # 20 Exhibit Klinger Decl., # 21 Exhibit SECNAVINST 14201.B, # 22 Exhibit Hendricks Decl., # 23 Exhibit Lanham Decl., # 24 Exhibit Sill Decl., # 25 Exhibit SECNAVINST 1730.7D, # 26 Exhibit BUPERSINST 1610.10D, # 27 Exhibit Siskin Aug. 2006 Decl., # 28 Exhibit Siskin May 2006 Supp. Report, # 29 Exhibit Siskin Feb. 2010 Decl., # 30 Exhibit Berto Decl., # 31 Text of Proposed Order)(Patil, Chetan) (Entered: 05/07/2018)
318 Cross MOTION for Summary Judgment by UNITED STATES NAVY (Attachments: # 1 Exhibit Black Decl., # 2 Exhibit Dunford Decl., # 3 Exhibit Rock Decl., # 4 Exhibit SECNAVINST 1401.3, # 5 Exhibit SECNAVINST 1401.3A, # 6 Exhibit Buckley Decl., # 7 Exhibit FY03 CAPT CHC Precept, # 8 Exhibit FY03 CDR CHC Precept, # 9 Exhibit FY04 CAPT CHC Precept, # 10 Exhibit FY04 CDR CHC Precept, # 11 Exhibit FY04 LCDR CHC Precept, # 12 Exhibit FY05 CAPT CHC Precept, # 13 Exhibit FY05 CDR CHC Precept, # 14 Exhibit FY05 LCDR CHC Precept, # 15 Exhibit FY06 CAPT CHC Precept, # 16 Exhibit FY06 CDR CHC Precept, # 17 Exhibit FY06 LCDR CHC Precept, # 18 Exhibit FY07 CAPT CHC Precept, # 19 Exhibit FY07 CDR CHC Precept, # 20 Exhibit Klinger Decl., # 21 Exhibit SECNAVINST 14201.B, # 22 Exhibit Hendricks Decl., # 23 Exhibit Lanham Decl., # 24 Exhibit Sill Decl., # 25 Exhibit SECNAVINST 1730.7D, # 26 Exhibit BUPERSINST 1610.10D, # 27 Exhibit Siskin Aug. 2006 Decl., # 28 Exhibit SIskin May 2006 Supp. Report, # 29 Exhibit Siskin Feb. 2010 Decl., # 30 Exhibit Berto Decl., # 31 Text of Proposed Order)(Patil, Chetan) (Entered: 05/07/2018)
319 ERRATA regarding Def.'s Exhibit by UNITED STATES NAVY 318 Cross MOTION for Summary Judgment filed by UNITED STATES NAVY. (Attachments: # 1 Exhibit Corrected Ex. 23 − Lanham Decl.)(Patil, Chetan) (Entered: 05/21/2018)
320 Consent MOTION to Dismiss CFGC Plaintiff Klon K. Kitchen Jr. by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 05/29/2018)
321 ERRATA by ALL ADAIR PLAINTIFFS, ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL GIBSON PLAINTIFFS 320 Consent MOTION to Dismiss CFGC Plaintiff Klon K. Kitchen Jr. filed by ALL CHAPLAIN/FULL GOSPEL PLAINTIFFS, ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS. (Attachments: # 1 Exhibit 1 Certif of Svc)(Schulcz, Arthur) (Entered: 05/30/2018)
322 Consent MOTION to Dismiss Adair Plaintiff Lyle Swanson by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 05/30/2018)
323 ORDER granting the consent motions to dismiss 320 plaintiff Klon K. Kitchen Jr. and 322 plaintiff Lyle Swanson. See text of Order for details. Signed by Judge John D. Bates on 5/30/2018. (lcjdb1) (Entered: 05/30/2018)
324 Consent MOTION for Extension of Time to File Response/Reply as to 313 MOTION for Summary Judgment Phase III Summary Judgment Motion, 318 Cross MOTION for Summary Judgment by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 06/18/2018)
MINUTE ORDER: Upon consideration of 324 plaintiffs' consent motion for an extension of time to file their combined opposition and reply, and the entire record herein, it is hereby ORDERED that the motion is GRANTED nunc pro tunc; and it is further ORDERED that plaintiffs' opposition and reply shall be filed by not later than today, June 19, 2018. Signed by Judge John D. Bates on 6/19/2018. (lcjdb1) (Entered:

06/19/2018
06/19/2018 06/20/2018 06/20/2018 07/03/2018
07/10/2018 07/17/2018 07/17/2018 07/18/2018
07/19/2018

06/19/2018)
325 REPLY to opposition to motion re 313 MOTION for Summary Judgment Phase III Summary Judgment Motion filed by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, RAFAEL J. QUILES, DANIEL E. ROYSDEN, MARY HELEN SPALDING. (Attachments: # 1 Statement of Facts, # 2 Exhibit 56 1120.9A, # 3 Exhibit 57 CoC 5.31.18 maail, # 4 Exhibit 58 Leuba Decl, # 5 Exhibit 59 Chaps & Boards, # 6 Exhibit 60 Gibson Decl, # 7 Exhibit 61 Rock Depo & others, # 8 Exhibit 62 AAS Decl, # 9 Statement of Facts Resp to Def's Facts)(Schulcz, Arthur) (Entered: 06/19/2018)
326 RESPONSE re 318 Cross MOTION for Summary Judgment filed by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING. (Attachments: # 1 Statement of Facts, # 2 Exhibit 56 1120.9A, # 3 Exhibit 57 CoC Email, # 4 Exhibit 58 Leuba Decl, # 5 Exhibit 59 Pls & Boards, # 6 Exhibit 60 Gibson Decl, # 7 Exhibit 61 Rock Depo & others, # 8 Exhibit 62 AAS Decl)(Schulcz, Arthur) (Entered: 06/19/2018)
327 ERRATA providing proposed order by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING 326 Response to motion, filed by ROBERT DUANE PURSER, MARY HELEN SPALDING, DANIEL E. ROYSDEN, DENISE Y. MERRITT, ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON. (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 06/20/2018)
Set/Reset Deadlines: Response and Reply to Cross Motion due by 6/19/2018. Response to Motion for Summary Judgment due by 6/19/2018. (tb) (Entered: 06/20/2018)
328 MOTION for Leave to File Supplemental Rule 56(d) Declaration by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Exhibit 1 Supp to Rule 56(d) Decl, # 2 Exhibit A Gibson Declaration, # 3 Exhibit B Quiles Resp to Interr, # 4 Exhibit C Quiles Depo Extracts, # 5 Exhibit D Blair Resp to Interr, # 6 Exhibit E Morris Decl, # 7 Exhibit F Dickerson Decl, # 8 Exhibit G Hamilton Decl, # 9 Exhibit H AAS Decl, # 10 Text of Proposed Order)(Schulcz, Arthur) (Entered: 07/03/2018)
329 NOTICE of Planitiffs' Expert Attending Hearing by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Exhibit 1 Dr. Leuba CV)(Schulcz, Arthur) (Entered: 07/10/2018)
330 REPLY to opposition to motion re 318 Cross MOTION for Summary Judgment filed by UNITED STATES NAVY. (Patil, Chetan) (Entered: 07/17/2018)
331 Memorandum in opposition to re 328 MOTION for Leave to File Supplemental Rule 56(d) Declaration filed by UNITED STATES NAVY. (Patil, Chetan) (Entered: 07/17/2018)
332 NOTICE of Exhibits for Hearing by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Exhibit 1 Ableson Decl, # 2 Exhibit 2 Redactions from DODIG, # 3 Exhibit 3 Holderby DODIG Test, # 4 Exhibit 4 DODIG Interview, # 5 Exhibit 5 Rock vs the Record, # 6 Exhibit 6 Discovery timeline, # 7 Exhibit 7 Blackball voting mach, # 8 Exhibit 8 RADM Black NIG Test, # 9 Exhibit 9 Washburn NIG Test, # 10 Exhibit 10 Recorder Test 2 NIG, # 11 Exhibit 11 Holderby NIG Test, # 12 Exhibit 12 Bd Mbr NIG Testim, # 13 Exhibit 13 CNA Prom %, # 14 Exhibit 14 Prom Bd Tiers, # 15 Exhibit 15 Prom *& Accessions)(Schulcz, Arthur) (Entered: 07/19/2018)
Minute Entry: Motion Hearing held on 7/19/2018 before Judge John D. Bates re 313 MOTION for Summary Judgment Phase III Summary Judgment Motion filed by ROBERT DUANE PURSER, MARY HELEN SPALDING, DANIEL E. ROYSDEN,

07/25/2018
07/25/2018
07/25/2018
08/30/2018
08/30/2018 08/31/2018 09/13/2018 09/18/2018 09/21/2018 09/24/2018 10/01/2018
10/01/2018
10/02/2018

DENISE Y. MERRITT, ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON and 318 Cross MOTION for Summary Judgment filed by UNITED STATES NAVY; motions heard and taken under advisement. (Court Reporter Bryan Wayne) (tb) (Entered: 07/19/2018)
333 REPLY to opposition to motion re 328 MOTION for Leave to File Supplemental Rule 56(d) Declaration filed by MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING. (Attachments: # 1 Exhibit I Discovery Time Line)(Schulcz, Arthur) (Entered: 07/25/2018)
334 Consent MOTION for Extension of Time to File Response/Reply by Four Minutes by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 07/25/2018)
MINUTE ORDER: Upon consideration of 334 plaintiffs' consent motion for an extension of time to file a reply in support of 328 their motion for leave to file supplemental declarations, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that 333 plaintiffs' reply is deemed timely filed. SO ORDERED. Signed by Judge John D. Bates on 7/25/2018. (lcjdb1) (Entered: 07/25/2018)
335 ORDER denying 254 , 276 , and 313 plaintiffs' motions for summary judgment; granting 260 , 282 , and 318 the Navy's motions for summary judgment, and denying 255 , 292 , and 328 plaintiffs' motions for additional discovery and to submit additional evidence. See text of Order and accompanying Memorandum Opinion for details. Signed by Judge John D. Bates on 8/30/2018. (lcjdb1) (Entered: 08/30/2018)
336 MEMORANDUM OPINION. Signed by Judge John D. Bates on 8/30/2018. (lcjdb1) (Entered: 08/30/2018)
Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 9/13/2018. (tb) (Entered: 08/31/2018)
337 Joint STATUS REPORT Regarding Proposal for Further Proceedings by UNITED STATES NAVY. (Patil, Chetan) (Entered: 09/13/2018)
338 ERRATA to Joint Proposal by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING 337 Status Report filed by UNITED STATES NAVY. (Schulcz, Arthur) (Entered: 09/18/2018)
339 ORDER granting in part and denying in part 337 the parties' joint proposal for further proceedings in this case. See text of Order for details. Signed by Judge John D. Bates on 9/21/18. (lcjdb1) (Entered: 09/21/2018)
Set/Reset Deadlines: The Parties shall file their Joint Motion to Sever Individual Claims, not to exceed 10 pages and shall contain an appendix, by not later than 10/3/2018. (jth) (Entered: 09/24/2018)
340 Consent MOTION for Extension of Time to File Joint Motion to Sever by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 10/01/2018)
MINUTE ORDER: Upon consideration of 340 plaintiffs' consent motion to extend the date for filing the parties' joint motion to sever, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the parties shall file their joint motion to sever and/or dismiss the remaining individual claims by not later than November 2, 2018. SO ORDERED. Signed by Judge John D. Bates on 10/1/18. (lcjdb1) (Entered: 10/01/2018)
Set/Reset Deadlines: Motion to sever due by 11/2/2018. (tb) (Entered: 10/02/2018)

10/16/2018 11/02/2018 11/07/2018 11/08/2018 11/27/2018 01/23/2019
01/24/2019
01/25/2019 03/01/2019 04/09/2019 04/16/2019 04/23/2019 04/25/2019
04/25/2019 06/20/2019 06/21/2019

341 NOTICE of Change of Address by Chetan A. Patil (Patil, Chetan) (Entered: 10/16/2018)
342 Joint MOTION to Sever Ad Hoc Claims by UNITED STATES NAVY (Attachments: # 1 Appendix Pls.' App'x 1, # 2 Appendix Pls.' App'x 2)(Patil, Chetan) (Entered: 11/02/2018)
343 ERRATA by UNITED STATES NAVY 342 Joint MOTION to Sever Ad Hoc Claims filed by UNITED STATES NAVY. (Attachments: # 1 Text of Proposed Order)(Patil, Chetan) (Entered: 11/07/2018)
344 ORDER granting 342 the parties' joint motion to sever individual claims. See text of Order for details. Signed by Judge John D. Bates on 11/8/18. (lcjdb1) (Entered: 11/08/2018)
345 NOTICE of Change of Address by Andrew Evan Carmichael (Carmichael, Andrew) (Entered: 11/27/2018)
346 Unopposed MOTION for Extension of Time to Refile Severed Claims by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 01/23/2019)
MINUTE ORDER: Upon consideration of 346 plaintiffs' consent motion for extension of time to refile severed claims, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; it is further ORDERED that plaintiffs shall refile their severed claims in appropriate venues by not later than Friday, March 1, 2019. Signed by Judge John D. Bates on 1/24/19. (lcjdb1) (Entered: 01/24/2019)
Set/Reset Deadlines: Plaintiff severe claims due by 3/1/2019. (tb) (Entered: 01/25/2019)
347 NOTICE of Filing of Severed Claims by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, DANIEL E. ROYSDEN (Attachments: # 1 Exhibit List of Pls Refiling Claims)(Schulcz, Arthur) (Entered: 03/01/2019)
348 STATUS REPORT re Filing of Lancaster v. Secretary of Navy by UNITED STATES NAVY. (Patil, Chetan) (Entered: 04/09/2019)
349 RESPONSE re 348 by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING. (Schulcz, Arthur) Modified on 4/18/2019 (ztd). (Entered: 04/16/2019)
350 Consent MOTION for Entry of Final Judgment by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Schulcz, Arthur) (Entered: 04/23/2019)
MINUTE ORDER: Upon consideration of 350 plaintiffs' consent motion for entry of judgment set out in a separate document, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; it is further ORDERED that the Clerk of Court shall enter final judgment in this case indicating that relief is denied on all counts in the consolidated complaint except for Counts 9, 11, and 12, and that Counts 9, 11, and 12 were severed and dismissed without prejudice. SO ORDERED. Signed by Judge John D. Bates on 4/25/19. (lcjdb1) (Entered: 04/25/2019)
351 JUDGMENT. Signed by Judge John D. Bates on 4/25/19. (lcjdb1) (Entered: 04/25/2019)
352 Emergency MOTION to Substitute Party (Unopposed) by Cynthia Palmer Prince (Attachments: # 1 Exhibit 1 J. Prince Death Certif, # 2 Exhibit 2 Summary Admin Order, # 3 Exhibit 3 Cynthia Prince Decl, # 4 Text of Proposed Order)(Schulcz, Arthur) (Entered: 06/20/2019)
353 Consent MOTION for Extension of Time to File Appeal under FRAP 4(a)(5)(A)(ii) by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON,

06/24/2019
06/26/2019 07/02/2019 07/03/2019 07/08/2019
07/09/2019
07/10/2019 07/10/2019 07/10/2019
07/12/2019 07/24/2019 07/24/2019 08/16/2019

DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Attachments: # 1 Exhibit 1 AAS Declaration, # 2 Text of Proposed Order)(Schulcz, Arthur) (Entered: 06/21/2019)
MINUTE ORDER: Upon consideration of 353 plaintiffs' consent motion for extension of time to file an appeal, and the entire record herein, the Court finds good cause shown for an extension of time pursuant to Federal Rule of Appellate Procedure 4(a)(5)(A)(ii), and it is hereby ORDERED that the time to file an appeal in this case is extended by 15 days, up to and including July 9, 2019. SO ORDERED. Signed by Judge John D. Bates on 6/24/19. (lcjdb1) (Entered: 06/24/2019)
Set/Reset Deadlines: Appeal due by 7/9/2019. (tb) (Entered: 06/26/2019)
354 NOTICE of Clarification by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, ROBERT DUANE PURSER, Cynthia Palmer Prince, DANIEL E. ROYSDEN, MARY HELEN SPALDING (Schulcz, Arthur) (Entered: 07/02/2019)
355 ORDER: Granting 352 Emergency MOTION to Substitute Party (Unopposed) filed by CYNTHIA PALMER PRINCE. Signed by Judge John D. Bates on 07/03/19. (tb) (Entered: 07/03/2019)
356 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 193 Order on Motion for Summary Judgment,, Order on Motion for Partial Summary Judgment, 236 Order on Motion to Amend/Correct, 124 Order, 248 Order on Motion to Amend/Correct, 202 Order, 238 Order on Motion to Dismiss by ASSOCIATED GOSPEL CHURCHES. Filing fee $ 505, receipt number 0090−6240628. Fee Status: Fee Paid. Parties have been notified. (Schulcz, Arthur) (Entered: 07/08/2019)
357 NOTICE OF APPEAL TO DC CIRCUIT COURT re 124 , 193 , 202 , 236 , 238 , 246 , and 335 by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, CYNTHIA PALMER PRINCE, DANIEL E. ROYSDEN, MARY HELEN SPALDING, BARBY EARL WILSON. Filing fee $ 505, receipt number 0090−6243514. Fee Status: Fee Paid. Parties have been notified. (Schulcz, Arthur) Modified to add links on 7/10/2019 (znmw). (Entered: 07/09/2019)
358 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 356 Notice of Appeal to DC Circuit Court. (znmw) (Entered: 07/10/2019)
359 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 357 Notice of Appeal to DC Circuit Court. (znmw) (Entered: 07/10/2019)
360 ERRATA to page 3 of Notice of Appeal by ALL ADAIR PLAINTIFFS, ALL GIBSON PLAINTIFFS, MARTHA CARSON, DENISE Y. MERRITT, CYNTHIA PALMER PRINCE, DANIEL E. ROYSDEN, MARY HELEN SPALDING, BARBY EARL WILSON 357 Notice of Appeal to DC Circuit Court, filed by MARY HELEN SPALDING, DANIEL E. ROYSDEN, DENISE Y. MERRITT, CYNTHIA PALMER PRINCE, BARBY EARL WILSON, ALL GIBSON PLAINTIFFS, ALL ADAIR PLAINTIFFS, MARTHA CARSON. (Attachments: # 1 Errata Corrected page 3)(Schulcz, Arthur) (Entered: 07/10/2019)
361 Supplemental Record on Appeal transmitted to US Court of Appeals re 360 Errata, 357 Notice of Appeal to DC Circuit Court; USCA Case Number: Unknown. (znmw) (Entered: 07/12/2019)
USCA Case Number 19−5204 for 356 Notice of Appeal to DC Circuit Court, filed by ASSOCIATED GOSPEL CHURCHES. (zrdj) (Entered: 07/25/2019)
USCA Case Number 19−5206 for 357 Notice of Appeal to DC Circuit Court, filed by MARY HELEN SPALDING, DANIEL E. ROYSDEN, DENISE Y. MERRITT, CYNTHIA PALMER PRINCE, BARBY EARL WILSON, ALL GIBSON PLAINTIFFS, ALL ADAIR PLAINTIFFS, MARTHA CARSON. (zrdj) (Entered: 07/25/2019)
362 TRANSCRIPT OF 7/19/18 MOTIONS HEARING before Judge John D. Bates held on July 19, 2018; Page Numbers: 1−78. Date of Issuance: 8/16/19. Court Reporter:

Bryan A. Wayne. Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcri pt may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 9/6/2019. Redacted Transcript Deadline set for 9/16/2019. Release of Transcript Restriction set for 11/14/2019.(Wayne, Bryan) (Entered: 08/16/2019)

 
 Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 1 of 31
APPEAL,CLOSED,JURY,TYPE−E
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:99−cv−02945−RMU

CHAPLAIN/FULL GOSPEL, et al v. DANZIG, et al Assigned to: Judge Ricardo M. Urbina Demand: $0 Case: 1:07−mc−00269−GK
Case in other court: U.S. Court of Appeals, 03−05333
USCA, 05−05143 Cause: 42:2000 Religion
Plaintiff

Date Filed: 11/05/1999 Date Terminated: 06/28/2007 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

CHAPLAINCY OF FULL GOSPEL CHURCHES

represented by Arthur A. Schulcz , Sr. THE LAW OFFICE OF ARTHUR A. SCHULCZ, SR. 2521 Drexel Street Vienna, VA 22180−6907 (703) 645−4010 Fax: (703) 645−4011 Email: arthur.schulcz@vacoxmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
ROBERT DUANE PURSER Lieutenant Commander

represented by Arthur A. Schulcz , Sr. (See above for address)

Plaintiff BARBY EARL WILSON

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant RICHARD J. DANZIG Secretary of the U.S. Navy TERMINATED: 09/16/2003
Defendant

represented by Michael Q. Hyde US DEPARTMENT OF JUSTICE Civil Division/Federal Programs Branch P.O. Box 883 Washington, DC 20044−0883 (202) 514−3338 Fax: (202) 616−8470 Email: michael.hyde@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Edward Caballero OFFICE OF SENATE LEGAL COUNSEL 642 Hart Senate Office Building Washington, DC 20510−7250 (202) 224−4435 Fax: (202) 224−3391 Email: thomas_caballero@legal.senate.gov TERMINATED: 11/14/2002
represented by

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 2 of 31

DANIEL T. OLIVER Vice Admiral, Chief of Naval Personnel TERMINATED: 08/17/2000

Christopher R. Hall U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW Room 7224 Washington, DC 20530 (202) 514−4778 Fax: (202) 616−8202 Email: christopher.hall@usdoj.gov LEAD ATTORNEY

Michael Q. Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Edward Caballero (See above for address) TERMINATED: 11/14/2002

Defendant
DEPARTMENT OF NAVY TERMINATED: 02/02/2009

represented by Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Q. Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Edward Bensing U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave N.W. Suite 6114 Washington, DC 20530 (202) 305−0693 Fax: (202) 616−8460 Email: daniel.bensing@usdoj.gov ATTORNEY TO BE NOTICED

Thomas Edward Caballero (See above for address) TERMINATED: 11/14/2002

Defendant
DONALD C. WINTER The Honorable, Secretary of the U.S. Navy

Defendant
GERALD L. HARVEY Vice Admiral, Chief of Naval Personnel

Defendant UNITED STATES NAVY

Plaintiff MARTHA CARSON

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 3 of 31

Plaintiff MARK R. JOHNSTON
Plaintiff KLON K. KITCHEN, JR.
Plaintiff DENISE Y. MERRITT
Plaintiff DANIEL E. ROYSDEN
Plaintiff MARY HELEN SPALDING
Plaintiff BARBY EARL Y TERMINATED: 02/02/2009
Movant NORBERT R. RYAN Chief of Naval Personnel TERMINATED: 09/15/2003 Defendant HANSFORD T. JOHNSON Secretary of the U.S. Navy TERMINATED: 02/02/2009
Defendant GERALD L. HOWEING Chief of Naval Personnel

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael Q. Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher R. Hall (See above for address) LEAD ATTORNEY
Michael Q. Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher R. Hall (See above for address)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 4 of 31

TERMINATED: 02/02/2009

LEAD ATTORNEY

Michael Q. Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Edward Bensing (See above for address) ATTORNEY TO BE NOTICED

Defendant
DEPARTMENT OF NAVY TERMINATED: 02/02/2009

represented by Christopher R. Hall (See above for address) LEAD ATTORNEY

Michael Q. Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Edward Bensing (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/05/1999 11/05/1999
12/23/1999 12/23/1999 12/23/1999 12/23/1999 12/23/1999 01/04/2000 01/05/2000 01/10/2000 02/01/2000

# Docket Text
1 COMPLAINT filed by plaintiff CHAPLAIN/FULL GOSPEL; exhibits (8) (dam) (Entered: 11/08/1999)
SUMMONS (5) issued to federal party(s) federal defendant RICHARD J. DANZIG, federal defendant DANIEL T. OLIVER, federal defendant NAVY , and non−parties: U.S. Attorney and U.S. Attorney General. (dam) (Entered: 11/08/1999)
2 RETURN OF SERVICE/AFFIDAVIT of summons and complaint executed on 11/8/99 upon federal defendant RICHARD J. DANZIG (dam) (Entered: 12/27/1999)
3 RETURN OF SERVICE/AFFIDAVIT of summons and complaint executed upon U.S. Attorney on 11/8/99 (dam) (Entered: 12/27/1999)
4 RETURN OF SERVICE/AFFIDAVIT of summons and complaint executed upon U.S. Attorney General on 11/8/99 (dam) (Entered: 12/27/1999)
5 RETURN OF SERVICE/AFFIDAVIT of summons and complaint executed on 11/8/99 upon federal defendant NAVY (dam) (Entered: 12/27/1999)
6 RETURN OF SERVICE/AFFIDAVIT of summons and complaint executed (date unknown) upon federal defendant DANIEL T. OLIVER (dam) (Entered: 12/27/1999)
7 MOTION (UNOPPOSED) filed by federal defendant RICHARD J. DANZIG, federal defendant DANIEL T. OLIVER, federal defendant NAVY to extend time to 02/01/00 to answer complaint [1−1] (dam) (Entered: 01/05/2000)
8 ORDER by Judge June L. Green: granting motion to extend time to 02/01/00 to answer complaint [1−1] [7−1] by federal defendants; (N) (gdf) (Entered: 01/07/2000)
9 AMENDED COMPLAINT by plaintiff CHAPLAIN/FULL GOSPEL amending complaint [1−1].; exhibits (8) (dam) Modified on 09/27/2000 (Entered: 01/11/2000)
10 MOTION filed by federal defendant RICHARD J. DANZIG, federal defendant DANIEL T. OLIVER, federal defendant NAVY to dismiss amended complaint

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 5 of 31

02/02/2000 02/04/2000 02/07/2000 02/11/2000 02/15/2000 02/15/2000 02/15/2000 02/22/2000 02/22/2000 02/29/2000
03/01/2000 03/08/2000 03/17/2000 03/17/2000
03/27/2000 06/23/2000

[9−1] (cjp) (Entered: 02/02/2000)
11 MOTION filed by plaintiff CHAPLAIN/FULL GOSPEL for temporary restraining order , and for preliminary injunction ; exhibits (16) (cjp) (Entered: 02/03/2000)
12 MEMORANDUM by federal defendant RICHARD J. DANZIG, federal defendant DANIEL T. OLIVER, federal defendant NAVY in opposition to motion for temporary restraining order [11−1] and for preliminary injunction [11−2] by CHAPLAIN/FULL GOSPEL; exhibits (2) (cjp) (Entered: 02/07/2000)
MOTION HEARING before Judge June L. Green denied motion for temporary restraining order [11−1] by CHAPLAIN/FULL GOSPEL. Reporter: Edward Hawkins (mlp) (Entered: 02/07/2000)
13 MOTION (UNOPPOSED) filed by plaintiff CHAPLAIN/FULL GOSPEL to extend time to 2/21/00 in which to serve a response or motion under LCVR 7.1 (cjp) (Entered: 02/14/2000)
14 ORDER by Judge June L. Green : granting motion to extend time to 2/21/00 in which to serve a response or motion under LCVR 7.1 [13−1] by CHAPLAIN/FULL GOSPEL (N) (jeb) (Entered: 02/18/2000)
15 MEMORANDUM OPINION by Judge June L. Green (N) (jeb) (Entered: 02/18/2000)
16 ORDER by Judge June L. Green : denying motion for a temporary restraining order and preliminary injunction [11−2] by CHAPLAIN/FULL GOSPEL (N) (jeb) (Entered: 02/18/2000)
17 MOTION filed by plaintiff CHAPLAIN/FULL GOSPEL to amend first amended complaint [9−1] by CHAPLAIN/FULL GOSPEL , and for leave to file second amended complaint ; EXHIBIT (SECOND AMENDED COMPLAINT) (cjp) (Entered: 02/23/2000)
18 RESPONSE by plaintiff CHAPLAIN/FULL GOSPEL in opposition to motion to dismiss amended complaint [9−1] [10−1] by NAVY, DANIEL T. OLIVER, RICHARD J. DANZIG; exhibits (4) (cjp) (Entered: 02/23/2000)
19 MOTION (UNOPPOSED) filed by federal defendant RICHARD J. DANZIG, federal defendant DANIEL T. OLIVER, federal defendant NAVY to extend time to 3/17/00 to reply to plaintiff's opposition to defendants' motion to dismiss and to respond to plaintiff's motion to amend first amended complaint (cjp) (Entered: 03/01/2000)
20 ORDER by Judge June L. Green : granting motion to extend time to 3/17/00 for defendants to reply to plaintiff's opposition to defendants' motion to dismiss and to respond to plaintiff's motion to amend first amended complaint [19−1] by NAVY, DANIEL T. OLIVER, RICHARD J. DANZIG (N) (jeb) (Entered: 03/01/2000)
21 MOTION filed by plaintiff CHAPLAIN/FULL GOSPEL to amend amended complaint [9−1] by CHAPLAIN/FULL GOSPEL EXHIBIT (amended complaint) (bjsp) (Entered: 03/09/2000)
22 REPLY by federal defendant RICHARD J. DANZIG, federal defendant DANIEL T. OLIVER, federal defendant NAVY in support of their motion to dismiss amended complaint [9−1] [10−1] (cjp) (Entered: 03/20/2000)
23 MEMORANDUM by federal defendant RICHARD J. DANZIG, federal defendant DANIEL T. OLIVER, federal defendant NAVY in opposition to motion to amend amended complaint [9−1] and [21−1] combined motion to amend first amended complaint and join additional plaintiffs [9−1] by CHAPLAIN/FULL GOSPEL [17−1] by CHAPLAIN/FULL GOSPEL (cjp) (Entered: 03/20/2000)
24 REPLY by plaintiff CHAPLAIN/FULL GOSPEL to defendants' opposition to motion to amend complaint and plaintiff's combined motion to amended complaint [21−1] (cjp) (Entered: 03/30/2000)
25 MOTION filed by plaintiff CHAPLAIN/FULL GOSPEL for partial summary judgment ; Exhibits (19) (tth) (Entered: 06/27/2000)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 6 of 31

06/29/2000 07/12/2000 07/25/2000 07/27/2000 08/17/2000 08/17/2000
08/17/2000 08/18/2000 08/31/2000 09/06/2000
09/06/2000 09/14/2000 09/21/2000

26 MOTION (UNOPPOSED) filed by federal defendant RICHARD J. DANZIG, federal defendant DANIEL T. OLIVER, federal defendant NAVY to extend time to 7/28/00 to respond to plaintiff's Joint Motion for Partial Summary Judgment (tth) (Entered: 06/30/2000)
27 ORDER by Judge June L. Green : granting motion to extend time to 7/28/00 to respond to plaintiff's Joint Motion for Partial Summary Judgment [26−1] by NAVY, DANIEL T. OLIVER, RICHARD J. DANZIG (N) (ks) (Entered: 07/12/2000)
28 MOTION filed by federal defendant RICHARD J. DANZIG, federal defendant DANIEL T. OLIVER, federal defendant NAVY to hold in abeyance proceedings on plaintiff's joint motion for partial summary judgment (dam) (Entered: 07/26/2000)
29 NOTICE OF CHANGE OF ADDRESS by Arthur A. Schulcz Sr. representing plaintiff CHAPLAIN/FULL GOSPEL . New address: LAW OFFICE OF ARTHUR A. SCHULCZ, SR, 2521 Drexel Street Vienna VA 22180 (703) 645−4010. (tb) (Entered: 07/28/2000)
30 MEMORANDUM by Judge June L. Green : (N) (N) (ks) (Entered: 08/17/2000)
31 ORDER by Judge June L. Green : granting in part, denying in part motion to dismiss for lack of plaintiff CFGC standing [9−1] [10−1], granting motion for leave to file second amended complaint [17−2] by CHAPLAIN/FULL GOSPEL; and that the race and gender discrimination claims are dismissed (Count 7 of the second amended complaint) granting motion to amend amended complaint [9−1] by CHAPLAIN/FULL GOSPEL [21−1] by CHAPLAIN/FULL GOSPEL, denying motion to hold in abeyance proceedings on plaintiff's joint motion for partial summary judgment [28−1] by NAVY, DANIEL T. OLIVER, RICHARD J. DANZIG; and that the parties file a LcvR 16.3(d) Report within 30 days of the date of this Order. (N) (ks) (Entered: 08/17/2000)
41 SECOND AMENDED COMPLAINT by plaintiff CHAPLAIN/FULL GOSPEL adding plaintiff MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN JR., DENISE Y. MERRITT, DANIEL E. ROYSDEN, MARY HELEN SPALDING, BARBY EARL WILSON, federal defendant NORBERT R. RYAN, and amending complaint [1−1]; exhibits (9) (tb) (Entered: 10/06/2000)
32 RESPONSE by plaintiff CHAPLAIN/FULL GOSPEL in opposition to defendants' motion to hold in abeyance proceedings on plaintiff's joint motion for partial summary judgment.; exhibits (1) (dam) (Entered: 08/23/2000)
33 JOINT MOTION (STIPULATION) by plaintiff, federal defendant to extend time to answer amended complaint [9−1] , and to extend time to respond to plaintiffs' loint motion for partial summary judgment (jf) (Entered: 09/01/2000)
34 ORDER by Judge June L. Green : granting joint motion to extend time to answer amended complaint until the parties have submitted their LCvR 16.3(d) Report and the Court has entered a scheduling order for proceeding in this case [9−1] [33−1]; granting joint motion to extend time to respond to plaintiffs' joint motion for partial summary judgment until the parties have submitted their LCvR 16.3(d) Report and the Court has entered a scheduling Order for proceeding in this case or as necessary to meet the terms of the stipulation [33−2] by DEPARTMENT OF NAVY, DANIEL T. OLIVER, RICHARD J. DANZIG, CHAPLAIN/FULL GOSPEL (N) (ks) (Entered: 09/06/2000)
37 ORDER by Judge June L. Green : that the motion to dismiss in this case and in ADAIR, et al. v. Danzig, et al., CA 00−566 (JLG), shall be considered jointly by the Court. (N) (ks) (Entered: 09/27/2000)
35 JOINT MOTION by plaintiff, federal defendant to extend time to file LCvR16.3(d) Report to 9/25/00. (ks) (Entered: 09/15/2000)
36 ORDER by Judge June L. Green : granting joint motion to extend time to file LCvR16.3(d) Report to 9/25/00. [35−1] by DEPARTMENT OF NAVY, DANIEL T. OLIVER, RICHARD J. DANZIG, CHAPLAIN/FULL GOSPEL (N) (ks) (Entered: 09/21/2000)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 7 of 31

09/25/2000 09/25/2000 09/25/2000 09/25/2000 09/26/2000
11/16/2000 12/04/2000 12/07/2000
12/19/2000 01/05/2001 01/10/2001 03/29/2001
05/03/2001

38 MEET AND CONFER STATEMENT/REPORT PURSUANT TO L.R. 16 filed by plaintiff CHAPLAIN/FULL GOSPEL, and federal defendants RICHARD J. DANZIG, DANIEL T. OLIVER, DEPARTMENT OF NAVY . (bm) (Entered: 09/27/2000)
39 MOTION filed by plaintiff CHAPLAIN/FULL GOSPEL, and federal defendants RICHARD J. DANZIG, DANIEL T. OLIVER, DEPARTMENT OF NAVY to consolidate case CA00−566 for limited purposes (bm) (Entered: 09/27/2000)
42 MOTION filed by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY, federal defendant NORBERT R. RYAN to dismiss amended complaint [41−1] (tb) (Entered: 10/06/2000)
43 RESPONSE by plaintiff in opposition to motion to dismiss amended complaint [41−1] [42−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG . (tb) (Entered: 10/06/2000)
40 ORDER by Judge June L. Green : granting motion to consolidate case CA00−566 for limited purposes of consideration and determination of preliminary motions [39−1] by DEPARTMENT OF NAVY, DANIEL T. OLIVER, RICHARD J. DANZIG, CHAPLAIN/FULL GOSPEL; and that should the Court deny in whole or in part the consolidated defendants' motion to dismiss, then these cases shall also be consolidated for case management and discovery purposes. (N) (ks) (Entered: 09/27/2000)
44 JOINT MOTION by plaintiffs to file newly discovered relevant evidence in support of plaintiffs' opposition to the Navy's motion to dismiss and in support of plaintiffs' motions for partial summary judgment judgment ; exhibits (11) (cjp) (Entered: 11/17/2000)
46 MOTION filed by plaintiff CHAPLAIN/FULL GOSPEL to add an additional plaintiff (tb) (Entered: 12/08/2000)
45 ORDER by Judge June L. Green : granting joint motion to file newly discovered relevant evidence in support of plaintiffs' opposition to the Navy's motion to dismiss and in support of plaintiffs' motions for partial summary judgment judgment [44−1] by CHAPLAIN/FULL GOSPEL; that plaintiffs proposed exhibits numbered 24−33 shall be added to plaintiff's opposition to the Navy's motion to dismiss; and plaintiff shall file a similar set with the Clerk of Court to supplement plaintiff's joint motion after receiving this Order. (N) (ks) (Entered: 12/07/2000)
47 ORDER by Judge June L. Green : granting motion to add an additional plaintiff [46−1] by CHAPLAIN/FULL GOSPEL (N) (ks) (Entered: 12/19/2000)
48 MOTION (unopposed) filed by federal defendant RICHARD J. DANZIG, federal defendant DANIEL T. OLIVER, federal defendant DEPARTMENT OF NAVY for leave to file a response to plaintiffs' memorandum accompanying the filing of additional evidence in opposition to defendants' motion to dismiss and in support of plaintiffs' motion for partial summary judgment. (td) (Entered: 01/24/2001)
CASE REASSIGNED from Judge June L. Green to Judge Ricardo M. Urbina (ks) (Entered: 01/11/2001)
49 ORDER by Judge Ricardo M. Urbina : denying without prejudice motion for leave to file a response to plaintiffs' memorandum accompanying the filing of additional evidence in to defendants' motion to dismiss and in support of plaintiffs' motion for partial summary judgment. [48−1] by DEPARTMENT OF NAVY, DANIEL T. OLIVER, RICHARD J. DANZIG, denying without prejudice motion to dismiss amended complaint [41−1] [42−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG, denying without prejudice motion for partial summary judgment [25−1] by CHAPLAIN/FULL GOSPEL (N) (jwd) (Entered: 03/29/2001)
50 ORDER by Judge Ricardo M. Urbina: reinstating the plaintiff's motionf for partial summary judgment [Document No. 25; the defendants' motion to dismiss the amended complaint [Document No. 42] and the defendants' motion for leave to file [Document No. 48} (N) (jwd) (Entered: 05/03/2001)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 8 of 31

05/03/2001
05/15/2001
07/25/2001 07/25/2001 08/13/2001 08/22/2001
09/05/2001 09/28/2001 12/20/2001 12/21/2001 01/04/2002 01/07/2002 01/10/2002 01/10/2002

51 MOTION (unopposed renewed) filed by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY, federal defendant NORBERT R. RYAN for leave to file a response to plaintiffs' memorandum accompanying the filing of additional evidence in opposition to defendants' motion to dismiss and in support of plaintiffs' motion for partial summary judgment. (td) (Entered: 05/08/2001)
52 ORDER by Judge Ricardo M. Urbina : granting motion for leave to file a response to plaintiffs' memorandum accompanying the filing of additional evidence in opposition to defendants' motion to dismiss and in support of plaintiffs' motion for partial summary judgment. [51−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG (N) (jwd) (Entered: 05/15/2001)
53 MOTION (UNOPPOSED) filed by plaintiffs for a Court's order establishing a briefing schedule for plaintiffs application for a preliminary injunction to restore the status QUO (bjsp) (Entered: 07/26/2001)
54 MOTION (APPLICATION) filed by plaintiffs for preliminary injunction to restore the status QUO ; exhibits (6) (bjsp) (Entered: 07/26/2001)
55 MEMORANDUM by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY, federal defendant NORBERT R. RYAN in opposition to plaintiffs' motion for preliminary injunction to restore the status QUO [54−1]; attachments (10) (td) (Entered: 08/14/2001)
56 REPLY by plaintiffs in support of motion for preliminary injunction to restore the status QUO [54−1] by CHAPLAIN/FULL GOSPEL, motion for a Court's order establishing a briefing schedule for plaintiffs application for a preliminary injunction to restore the status QUO [53−1]; attachments (7)(td) Modified on 08/27/2001 (Entered: 08/27/2001)
57 ERRATA by federal defendant RICHARD J. DANZIG of substitution of original for facsimile copy of declaration of Louis V. Iasiello in support of defendants' opposition to plaintiffs' application for a preliminary injunction to restore the status quo. (td) (Entered: 09/13/2001)
58 ORDER by Judge Ricardo M. Urbina: granting in part, denying in part motion to dismiss amended complaint [41−1] [42−1], denying without prejudice motion for partial summary judgment [25−1] by CHAPLAIN/FULL GOSPEL (N) (jwd) (Entered: 10/01/2001)
108 Stricken pursuant to Order filed 7/22/02: MOTION filed by plaintiff for partial summary judgment ; exhibits (1−41) (aet) Modified on 07/23/2002 (Entered: 07/23/2002)
59 MOTION filed by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY, federal defendant NORBERT R. RYAN to strike plaintiff's motion for partial summary judgment , or, in the alternative, to extend time by 60 days to oppose that motion (aet) (Entered: 12/31/2001)
60 MOTION filed by plaintiffs for preliminary injunction to delay the Navy's Chalplin Promotion Boards until after the court rules on plaintiffs' partial summary judgment motion on the constitutionality of those boards ; exhibit (1) (td) (Entered: 01/08/2002)
61 RESPONSE by plaintiffs in opposition to defendants' motion to strike [59−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG . (td) (Entered: 01/08/2002)
62 MEMORANDUM OPINION by Judge Ricardo M. Urbina (N) (jwd) (Entered: 01/10/2002)
63 ORDER by Judge Ricardo M. Urbina: denying defendants' motion to dismiss the plaintiffs' claims involving the hiring and retention of chaplains; denying in part and granting in part the defendant's motion to dismiss the plaintiffs' claims relating to the Navy's promotion of chaplains; denying the defendants' motion to dismiss the plaintiffs' claim involving the Navy's alleged implementation of a liturgical Protestant "general service"; denying the defendants' motion to dismiss the

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 9 of 31

01/11/2002 01/18/2002
01/23/2002
01/23/2002 01/28/2002 01/30/2002 01/31/2002
02/01/2002
02/01/2002 02/04/2002 02/05/2002 02/07/2002
02/07/2002

plaintiffs' claim relating to the plaintiffs' religious speech and the free exercise of their religion; denying defendants' motion to dismiss the plaintiffs' claim for constructive discharge; directing that the parties shall further brief serveral of the plaintiffs' claims that the briefs do not sufficient address; denying as moot the defendants' motion to hold the proceedings in abeyance until the court resolves the motion to dismiss; denying without prejudice the plaintiffs' motion for partial summary judgment; denyingwithout prejudice the plaintiffs' motion to allow a chaplain plaintiff to use a pseudenym. (N) (jwd) (Entered: 01/10/2002)
64 MOTION (consent) filed by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY, federal defendant NORBERT R. RYAN to extend time to 1/18/02 in which to serve and file an oppositio in response to plaintiffs' application for preliminary injunction. (td) (Entered: 01/15/2002)
65 MEMORANDUM by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY, federal defendant NORBERT R. RYAN in opposition to motion for preliminary injunction to delay the Navy's Chalplin Promotion Boards until after the court rules on plaintiffs' partial summary judgment motion on the constitutionality of those boards [60−1]; attachments (5) (td) (Entered: 01/23/2002)
66 ORDER by Judge Ricardo M. Urbina: granting nunc pro tunc motion to extend time to 1/18/02 in which to serve and file an opposition in response to plaintiffs' application for preliminary injunction. [64−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG response to motion for preliminary injunction due by 1/18/02 ; (N) (dam) (Entered: 01/23/2002)
67 REPLY by plaintiffs in support of motion for preliminary injunction [60−1]; attachments ( 6) (td) (Entered: 01/24/2002)
68 MOTION filed by plaintiff for reconsideration of order dated 01/10/02 [63−1] , and for partial summary judgment ; exhibits (16) (jf) (Entered: 01/30/2002)
69 ERRATA by plaintiffs notice of filing of title page and page 8 of their motion for reconsideration and partial summary judgment filed 1/29/02. (td) (Entered: 01/31/2002)
70 ERRATA by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY, federal defendant NORBERT R. RYAN notice of substitution of original for facsimile copy of declaration of Dennis J. Argall in support of defendants' oppositio nto plaintiff's application for a preliminary injunction. (td) (Entered: 02/01/2002)
71 ORDER by Judge Ricardo M. Urbina : denying motion for preliminary injunction to delay the Navy's Chalplin Promotion Boards until after the court rules on plaintiffs' partial summary judgment motion on the constitutionality of those boards [60−1] by KLON K. KITCHEN JR., MARK R. JOHNSTON, MARTHA CARSON, CHAPLAIN/FULL GOSPEL (N) (adc) (Entered: 02/01/2002)
72 NOTICE by plaintiffs of material misrepresentation. (td) (Entered: 02/04/2002)
73 MEET AND CONFER STATEMENT/REPORT PURSUANT TO L.R. 16 filed by plaintiffs, federal defendants, (td) (Entered: 02/06/2002)
74 ERRATA by plaintiffs notice of filing correcting citations mentioned in their motion for reconsideration fna partial summary judgment. (td) (Entered: 02/06/2002)
STATUS HEARING before Judge Ricardo M. Urbina : plaintiff given until 2/18/02 to submit phase #2 discovery; Court granted plaintiff permission to add additional 17 or 18 plaintiffs; defendant given until 2/28/02 to file an opposition to plaintiffs' motion for reconsideration; reply by 3/11/02; (see scheduling order entry for other scheduled events); Reporter: William D. McAllister (jwd) Modified on 02/08/2002 (Entered: 02/07/2002)
75 SCHEDULING ORDER by Judge Ricardo M. Urbina plaintiff given until 2/11/02 to file and serve one, unified motion for partial summary judgment;the memorandum in support of that motion shall not exceed 60 pages; defendant have

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 10 of 31

02/07/2002 02/08/2002
02/11/2002 02/15/2002 02/28/2002 03/05/2002
03/11/2002 03/14/2002 03/28/2002
03/29/2002 03/29/2002

until 3/28/02 to file and serve an opposition and any cross−motion thereto; the memnorandum in opposition shall not exceed 60 pages; plaintiffs shall have until 5/13/02 to file and serve a memorandum in reply on their motion for partial summary judgment in response to any cross−motion for partial summary judgment; defendant shall have until 6/12/02, to file and serve a reply memorandum in support of their cross−motion for partial summary judgment, if they file such motion; plaintiff have up to and including 3/28/02, to file and serve their motion for class certification in Adair v. England, C.A. 00−0506; defendant shall up to and including 5/13/02, to file and serve their memorandum im opposition to plaintiff's motion for class certification; plaintiffs shall have up to and including 6/12/02, to file and serve their reply memorandum in support of their motion for class certification; defendants shall have up to and including 2/15/02, to file and serve their supplemental motion to dismiss, if they choose to file such a motion, pursuant to Court's Orfer of 1/10/02; memorandum in support of this motion shall not exceed 10 pages; plaintiff have up to and including 3/18/02 to file and serve their memorandum in oppositon to the supplemental motion to dismiss; this memorandim shall not exceed 10 pages; defendants have up to and including 4/2/02 to file their reply memorandum in support of the supplemental motion to dismiss; this reply memorandum shall not exceed 7 pages (N) (jwd) (Entered: 02/07/2002)
76 STANDING ORDER by Judge Ricardo M. Urbina: issued (N) (jwd) (Entered: 02/07/2002)
77 ORDER by Judge Ricardo M. Urbina: directing that the defendnts' oppositon to the plaintiffs' motion for reconsideration of the court's dismissal of the plaintiffs' claims that having chapliant members of chaplain promotion board and having chaplains rate other chaplains violates the Constitution shall be due 2/28/02; plaintiffs' reply, if any shall be due 3/11/02. (N) (jwd) (Entered: 02/08/2002)
78 MOTION filed by plaintiffs for partial summary judgment on the constitutionality of the Navy's Chaplin Corps' hiring and promotion policies ; exhibits (42) (td) (Entered: 02/13/2002)
79 MOTION filed by plaintiffs for phased discovery ; exhibit (1) (td) (Entered: 02/22/2002)
80 MEMORANDUM by federal defendant in opposition to motion for reconsideration of order dated 01/10/02 [63−1] [68−1] by CHAPLAIN/FULL GOSPEL, motion for partial summary judgment [68−2] by CHAPLAIN/FULL GOSPEL (td) (Entered: 03/04/2002)
81 MEMORANDUM by federal defendant RICHARD J. DANZIG, federal defendant DANIEL T. OLIVER, federal defendant DEPARTMENT OF NAVY, federal defendant NORBERT R. RYAN in opposition to plaintiff's motion for phased discovery [79−1] by KLON K. KITCHEN JR., MARK R. JOHNSTON, MARTHA CARSON, CHAPLAIN/FULL GOSPEL (td) (Entered: 03/07/2002)
82 REPLY by plaintiffs in support to motion for reconsideration and partial summary judgment [78−1] by plaintiffs; attachment (1) (bm) (Entered: 03/13/2002)
83 REPLY by plaintiffs in support of motion for phased discovery [79−1]; attachment (1) (td) (Entered: 03/19/2002)
90 MOTION filed by federal defendant RICHARD J. DANZIG, federal defendant DANIEL T. OLIVER, federal defendant DEPARTMENT OF NAVY to extend time in which to serve and file defendants' cross motion for partial summary judgment and oppositon to plaintiffs' motion for partial summary judgment. (td) (Entered: 04/11/2002)
84 MEMORANDUM OPINION by Judge Ricardo M. Urbina denying without prejudice the plaintiffs' motion for a preliminary injunction to restore the status quo (N) (jwd) (Entered: 04/02/2002)
85 ORDER by Judge Ricardo M. Urbina: denying without prejudice motion for preliminary injunction to restore the status QUO [54−1] by CHAPLAIN/FULL GOSPEL (N) (jwd) (Entered: 04/02/2002)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 11 of 31

03/29/2002 03/29/2002
04/01/2002 04/04/2002 04/09/2002
04/15/2002
04/30/2002 05/02/2002
05/13/2002
05/16/2002 05/28/2002 06/11/2002
06/20/2002 07/01/2002

86 CROSS MOTIONS by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY, federal defendant NORBERT R. RYAN for partial summary judgment (jf) Modified on 04/03/2002 (Entered: 04/02/2002)
87 RESPONSE by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY, federal defendant NORBERT R. RYAN in opposition to motion for partial summary judgment on the constitutionality of the Navy's Chaplin Corps' hiring and promotion policies [78−1] by plaintiffs (jf) Modified on 04/03/2002 (Entered: 04/02/2002)
88 MOTION filed by federal defendants for leave to file surreply ; EXHIBIT (Surreply) (bjsp) (Entered: 04/02/2002)
89 RESPONSE by plaintiffs in opposition to motion for leave to file surreply [88−1] by RICHARD J. DANZIG . (bjsp) (Entered: 04/05/2002)
91 ERRATA by federal defendant RICHARD J. DANZIG, federal defendant DANIEL T. OLIVER, federal defendant DEPARTMENT OF NAVY notice of filing of corrected memorandum and corrected exhibits in support of defendants' cross motion for partial summary judgment and in opposition to plaintiffs' motion for partial summary judgment; (bulky) (td) (Entered: 04/11/2002)
92 FIRST SUPPLEMENT by plaintiffs CHAPLAIN/FULL GOSPEL, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN JR., DENISE Y. MERRITT, DANIEL E. ROYSDEN, MARY HELEN SPALDING, BARBY EARL WILSON, ROBERT DUANE PURSER to second amended complaint [41−1] by CHAPLAIN/FULL GOSPEL; attachments (7) (bm) (Entered: 04/17/2002)
93 MOTION (consent) filed by federal defendant to set the date by which defendants must file an answer to plaintiffs' first supplement to the second amended complaint. (td) (Entered: 05/02/2002)
94 ORDER by Judge Ricardo M. Urbina : granting motion to set the date by which defendants must file an answer to plaintiffs' first supplement to the second amended complaint. [93−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, DANIEL T. OLIVER, RICHARD J. DANZIG (N) (jwd) (Entered: 05/02/2002)
95 REPLY by plaintiffs CHAPLAIN/FULL GOSPEL, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN JR., DENISE Y. MERRITT, DANIEL E. ROYSDEN, MARY HELEN SPALDING, BARBY EARL WILSON, and ROBERT DUANE PURSER in support of motion for partial summary judgment on the of the Navy's Chaplin Corps' hiring and promotion policies [78−1] by plaintiffs, and motion for partial summary judgment [68−2] by CHAPLAIN/FULL GOSPEL; attachments (21) (attachments N &Q missing) BULKY PLEADING (bm) Modified on 05/14/2002 (Entered: 05/14/2002)
96 ERRATA by plaintiffs; exhibits to their reply to defendant's opposition to plaintiff's motion for partial summary judgment (aet) (Entered: 05/22/2002)
97 ANSWER TO AMENDED COMPLAINT [41−1] by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY, federal defendant NORBERT R. RYAN (td) (Entered: 05/31/2002)
98 REPLY by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY, federal defendant NORBERT R. RYAN in support of cross motion for partial summary judgment [86−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG; declarations (2) exhibits (6) (aet) (Entered: 06/13/2002)
99 NOTICE OF SUPPLEMENTAL AUTHORITY by federal defendant RICHARD J. DANZIG, plaintiff MARTHA CARSON, federal defendant NORBERT R. RYAN (aet) (Entered: 06/26/2002)
100 RESPONSE by plaintiffs to notice [99−1] by NORBERT R. RYAN, MARTHA CARSON, RICHARD J. DANZIG; exhibits (2) (aet) (Entered: 07/02/2002)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 12 of 31

07/19/2002 07/19/2002 07/22/2002
07/22/2002 07/22/2002
07/22/2002
07/22/2002 07/24/2002 07/29/2002 07/29/2002 07/31/2002 08/05/2002 08/05/2002 08/05/2002

106 MOTION filed by federal defendants RICHARD J. DANZIG, DEPARTMENT OF NAVY, and NORBERT R. RYAN for leave to file a reply to defendants' submission of supplemental authority EXHIBIT−REPLY (bm) (Entered: 07/22/2002)
107 NOTICE OF FILING by federal defendants RICHARD J. DANZIG, DEPARTMENT OF NAVY, and NORBERT R. RYAN the Declarations of Captain John F. Gundlach III and Commander James Francis Buckley, USN; attachments (2) (bm) (Entered: 07/22/2002)
101 ORDER by Judge Ricardo M. Urbina: directing my 7/29/02, each party shall provide the Court with no more than a two−page notice telling the Court which exhibits (including specific page or paragraph numbers) the parties view as most important to the Court's resolution of the cross−motions for partial summary judgment; there shalll be no extensions of time. (N) (bm) (Entered: 07/22/2002)
102 ORDER by Judge Ricardo M. Urbina : granting motion to strike plaintiff's motion for partial summary judgment filed 12/20/01 [59−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG (N) (bm) (Entered: 07/22/2002)
103 ORDER by Judge Ricardo M. Urbina : granting nunc pro tunc motion to extend time in which to serve and file defendants' cross motion for partial summary judgment and oppositon to plaintiffs' motion for partial summary judgment. [90−1] by DEPARTMENT OF NAVY, DANIEL T. OLIVER, RICHARD J. DANZIG; defendants' cross motions due by 2:15 a.m. 3/29/02; and their response to plaintiffs' motion for partial summary judgment due 2:15 a.m. 3/29/02 (N) (bm) (Entered: 07/22/2002)
104 ORDER by Judge Ricardo M. Urbina: granting defendants' motion nunc pro tunc extending time to 7/3/02 to file and serve a reponse to plaintiffs' first motion to add additional plaintiffs; counsel are reminded that all motions for extensions of time shall be filed four business days in advance of the due date. (N) (bm) (Entered: 07/22/2002)
105 ORDER by Judge Ricardo M. Urbina: defendants shall have 30 days from the date on which the Court rules on plaintiffs' motion for partial summary judgment filed 2/11/02, and any cross−motion thereto, to file and serve an answer to the amended complaints in these cases. (N) (bm) (Entered: 07/22/2002)
109 MOTION filed by federal defendants RICHARD J. DANZIG, DEPARTMENT OF NAVY, and NORBERT R. RYAN to extend time to 8/9/02 in which to respond to plaintiffs' Rule 56 motion to strike declarations (bm) (Entered: 07/25/2002)
110 NOTICE by plaintiff CHAPLAIN/FULL GOSPEL of their most important exhibits (bm) (Entered: 07/30/2002)
111 NOTICE by federal defendants RICHARD J. DANZIG, DEPARTMENT OF NAVY, and NORBERT R. RYAN important exhibits in response to Court's Order of 7/22/02. (bm) (Entered: 07/30/2002)
112 MEMORANDUM OPINION by Judge Ricardo M. Urbina (N) (jwd) (Entered: 08/01/2002)
113 ORDER by Judge Ricardo M. Urbina : granting motion for leave to file a reply to defendants' submission of supplemental authority [106−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG (N) (jwd) (Entered: 08/05/2002)
114 ORDER by Judge Ricardo M. Urbina : granting motion to extend time to 8/9/02 in which to respond to plaintiffs' Rule 56 motion to strike declarations [109−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG (N) (jwd) (Entered: 08/05/2002)
115 MEMORANDUM OPINION by Judge Ricardo M. Urbina denying the plaintiffs' motion for relief from judgment and for partial summary judgment (N) (jwd) (Entered: 08/05/2002)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 13 of 31

08/05/2002 08/16/2002 08/27/2002 08/27/2002
08/27/2002
10/01/2002 10/29/2002 11/14/2002 11/22/2002 11/25/2002 12/03/2002 12/16/2002 12/27/2002

116 ORDER by Judge Ricardo M. Urbina : denying motion for for relief from judgment [68−1] by CHAPLAIN/FULL GOSPEL, denying motion for partial summary judgment [68−2] by CHAPLAIN/FULL GOSPEL (N) (jwd) (Entered: 08/05/2002)
120 REPLY by plaintiff to response to plaintiff's Rule 56 motion to strike declarations.; exhibits (2) (aet) (Entered: 08/28/2002)
117 MEMORANDUM OPINION by Judge Ricardo M. Urbina denying without prejudice the plaintiffs' motion for partial summary summary judgment; denying without prejudice the defendants' motion for partial summary judgment. (N) (jwd) (Entered: 08/27/2002)
118 ORDER by Judge Ricardo M. Urbina : denying without prejudice cross motion for partial summary judgment [86−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG, denying without prejudice motion for partial summary judgment on the constitutionality of the Navy's Chaplin Corps' hiring and promotion policies [78−1] by plaintiffs; denying without prejudice the plaintiffs' rule 56 motion to strike declarations (N) (jwd) (Entered: 08/27/2002)
119 ORDER by Judge Ricardo M. Urbina : directing that the case will procced to discovery; granting motion for phased discovery [79−1] by KLON K. KITCHEN JR., MARK R. JOHNSTON, MARTHA CARSON, CHAPLAIN/FULL GOSPEL; directing the parties to submit a status report to the court by 10/1/02; status report should include a join proposal for how discovery should proceed, the parties' view on whether these cases should beconsolidated for all purpose, and any other issue that the parties would like the court to address. (N) (jwd) (Entered: 08/27/2002)
121 STATUS REPORT by plaintiff, federal defendants (aet) (Entered: 10/04/2002)
125 MOTION filed by plaintiff CHAPLAIN/FULL GOSPEL for order requiring defendant Secretary of the Navy to release personnel associated with Chaplain Promotion Boards from their oath not to disclose promotion board proceedings ; exhibits (10) (aet) (Entered: 12/04/2002)
122 SUBSTITUTION OF COUNSEL for federal defendants RICHARD J. DANZIG, DEPARTMENT OF NAVY, NORBERT R. RYAN , substituting Michael Quenten Hyde for attorney Thomas E. Caballero for DEPARTMENT OF NAVY, RICHARD J. DANZIG (aet) (Entered: 11/18/2002)
124 RESPONSE by federal defendants RICHARD J. DANZIG, and DEPARTMENT OF NAVY in opposition to plaintiffs' motion for an order requiring defendant Secretary of the Navy to release personnel associated with Chaplain Promotion Boards from their oath not to disclose Promotion Board proceedings attachments (10) BULKY PLEADING (bm) (Entered: 11/26/2002)
123 PETITION filed by plaintiffs CHAPLAIN/FULL GOSPEL, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN JR., DENISE Y. MERRITT, DANIEL E. ROYSDEN, MARY HELEN SPALDING, BARBY EARL WILSON, and ROBERT DUANE PURSER for writ of mandamus ; attachments (12) BULKY PLEADING (bm) (Entered: 11/26/2002)
126 REPLY by plaintiff CHAPLAIN/FULL GOSPEL to response in opposition to motion for order requiring defendant Secretary of the Navy to release personnel associated with Chaplain Promotion Boards from their oath not to disclose promotion board proceedings [125−1] by CHAPLAIN/FULL GOSPEL; exhibits (4) (aet) (Entered: 12/04/2002)
127 MOTION filed by federal defendants to strike petition for writ of mandamus [123−1] , or in the alternative to dismiss petition for writ of mandamus [123−1] (ks) (Entered: 12/17/2002)
128 REPLY by plaintiff CHAPLAIN/FULL GOSPEL motion to strike petition for writ of mandamus [123−1] [127−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG, motion to dismiss petition for writ of mandamus [123−1] [127−2] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG.; exhibits (2) (aet) (Entered: 01/07/2003)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 14 of 31

01/06/2003 01/09/2003
01/17/2003 02/12/2003 02/13/2003 03/21/2003
05/01/2003 05/01/2003 05/09/2003 05/15/2003
05/15/2003 05/22/2003 05/23/2003 06/05/2003 06/08/2003

129 MOTION filed by plaintiff CHAPLAIN/FULL GOSPEL for order under Fed.R.Civ.P. 26(b)(2) altering the presumptive limits for the number of depositions and interrogatories in rules 30(a)(2)(A) and 33(a) ; exhibits (1) (aet) (Entered: 01/10/2003)
130 REPLY by federal defendants RICHARD J. DANZIG, and DEPARTMENT OF NAVY in support of motion to strike petition for writ of mandamus [123−1] [127−1] by DEPARTMENT OF NAVY, RICHARD J. DANZIG, motion to dismiss petition for writ of mandamus [123−1] [127−2] by DEPARTMENT OF NAVY, RICHARD J. DANZIG; attachment (1) (bm) (Entered: 01/13/2003)
131 (CONSENT) MOTION filed by federal defendant to hold abeyance proceedings on plaintiff's motion for an order altering the presumptive limits for the number depositions and interrogatories to allow plaintiff to complay with the requirements of the Court's standing order (tb) (Entered: 01/22/2003)
132 MOTION filed by plaintiff for order appointing and commissioning Karen Young to administer oaths and record depositions in Italy , and for a certificate of pendency (nmr) (Entered: 02/13/2003)
133 ORDER by Judge Ricardo M. Urbina : granting motion for order appointing and commissioning Karen Young to administer oaths and record depositions in Italy [132−1] by CHAPLAIN/FULL GOSPEL; attachments (s) (N) (jwd) (Entered: 02/13/2003)
134 MOTION filed by plaintiffs CHAPLAIN/FULL GOSPEL, MARTHA CARSON, MARK R. JOHNSTON, KLON KITCHEN JR., DENISE Y. MERRITT, DANIEL E. ROYSDEN, MARY HELEN SPALDING, BARBY EARL WILSON, and ROBERT DUANE PURSER for order referring discovery motions and issues to a Magistrate Judge (bm) (Entered: 03/26/2003)
135 NOTICE by plaintiffs of defendant's waiver of opposition to plaintiffs' motion for an order compelling the Secretary of the Navy to release board personnel from their oath of secrecy.; exhibits (2) (aet) (Entered: 05/02/2003)
136 MOTION filed by plaintiffs for leave to file a supplemental pleading ; exhibits (2) (aet) (Entered: 05/02/2003)
137 RENEWED MOTION filed by plaintiffs for order referring discovery motions and issues to a Magistrate Judge (bm) (Entered: 05/12/2003)
138 RESPONSE by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY to notice of defendant's waiver of opposition to plaintiff's motion for an order compelling the Secretary of the Navy to release board personnel from their oath of secrecy or in the alternative a motion to file a supplemental pleading [135−1] by plaintiffs; exhibits (4) (aet) (Entered: 05/27/2003)
139 MOTION filed by plaintiff for declaratory or partial summary judgment that any misconduct or bias on Navy Chaplain promotion boards is self−concealing fraud and the defendant's have the burden to show when the plaintiffs received notice of their cause of action ; exhibits (10) (aet) (Entered: 05/27/2003)
140 MOTION (CONSENT) filed by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY to extend time to 6/10/03 to file an opposition or otherwise respond to plaintiff's motion for declaratory or partial summary judgment (aet) (Entered: 05/27/2003)
141 REPLY by plaintiff to response to notice [138−1] by DEPARTMENT OF NAVY, RICHARD J. DANZIG .; exhibits (2) (aet) Modified on 05/28/2003 (Entered: 05/28/2003)
142 MOTION filed by plaintiffs for preliminary and structual injunction , for partial summary judgment ; attachments (16) BULKY PLEADING (bm) (Entered: 06/06/2003)
143 NOTICE by plaintiffs of clarification on 6/5/03 certificate of service. (bm) (Entered: 06/11/2003)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 15 of 31

06/10/2003 06/11/2003 06/19/2003 06/19/2003
06/25/2003 06/26/2003 06/26/2003
07/01/2003 07/09/2003 07/21/2003 07/30/2003 08/01/2003
08/04/2003

144 MOTION filed by federal defendants to hold plaintiffs' motion for declaratory or partial summary judgment in abeyance , and, in the alternative, for discovery pursuant to FRCP 56(f) ; Exhibits (2) (nmr) (Entered: 06/11/2003)
145 MOTION (UNOPPOSED) filed by federal defendant RICHARD J. DANZIG, federal defendant DEPARTMENT OF NAVY to extend time to 8/18/03 to file and serve an opposition to plaintiff's motion for preliminary and structural injunction (aet) (Entered: 06/12/2003)
146 RESPONSE by plaintiff CHAPLAIN/FULL GOSPEL in opposition to motion to hold plaintiffs' motion for declaratory or partial summary judgment in abeyance [144−1] by DEPARTMENT OF NAVY, RICHARD J. DANZIG . (aet) (Entered: 06/20/2003)
147 REPLY by plaintiff CHAPLAIN/FULL GOSPEL to response in opposition to motion for partial summary judgment [142−2] by plaintiff, motion to extend time to 6/10/03 to file an opposition or otherwise respond to plaintiff's motion for declaratory or partial summary judgment [140−1] by DEPARTMENT OF NAVY, RICHARD J. DANZIG (aet) (Entered: 06/20/2003)
150 MOTION filed by plaintiffs to vacate existing discovery dates (aet) (Entered: 06/27/2003)
148 ORDER by Judge Ricardo M. Urbina : granting motion to extend time to 8/18/03 to file and serve an opposition to plaintiff's motion for preliminary and structural injunction [145−1] by DEPARTMENT OF NAVY, RICHARD J. DANZIG (N) (jwd) (Entered: 06/26/2003)
149 ORDER by Judge Ricardo M. Urbina : granting motion to hold abeyance proceedings on plaintiff's motion for an order altering the presumptive limits for the number depositions and interrogatories to allow plaintiff to complay with the requirements of the Court's standing order [131−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG (N) (jwd) (Entered: 06/26/2003)
151 REPLY by federal defendant in support of motion to hold plaintiffs' motion for declaratory or partial summary judgment in abeyance and in the alternative for further discovery pursuant to FRCP 56(f) [144−1] by DEPARTMENT OF NAVY, RICHARD J. DANZIG (bm) (Entered: 07/03/2003)
152 RESPONSE by federal defendants to plaintiffs' status report with a suggestion for priorities on deciding pending motions and a motion to vacate existing discovery dates [150−1] by plaintiff (bm) (Entered: 07/10/2003)
153 REPLY by plaintiff to defendnats' response to plaintiffs' status report and motion to vacate existing discovery dates [150−1] (jf) (Entered: 07/24/2003)
154 MOTION filed by federal defendants to extend time to 9/12/03 to answer second amended complaint [41−1] (bjsp) (Entered: 08/01/2003)
155 ORDER by Judge Ricardo M. Urbina : granting motion to extend time to 9/12/03 to answer second amended complaint [41−1] [154−1] by NORBERT R. RYAN ; Answer extended to 9/12/03 for NORBERT R. RYAN, for DEPARTMENT OF NAVY, for DANIEL T. OLIVER, for RICHARD J. DANZIG (N) (jwd) (Entered: 08/01/2003)
156 MEMORANDUM ORDER by Judge Ricardo M. Urbina : denying motion to hold plaintiffs' motion for declaratory or partial summary judgment in abeyance [144−1] by DEPARTMENT OF NAVY, RICHARD J. DANZIG, denying motion for discovery pursuant to FRCP 56(f) [144−2] by DEPARTMENT OF NAVY, RICHARD J. DANZIG, granting nunc pro tunc motion to extend time to 6/10/03 to file an opposition or otherwise respond to plaintiff's motion for declaratory or partial summary judgment [140−1] by DEPARTMENT OF NAVY, RICHARD J. DANZIG, denying motion for declaratory or partial summary judgment that any misconduct or bias on Navy Chaplain promotion boards is fraud and the defendant's have the burden to show when the plaintiffs received notice of their cause of action [139−1] by plaintiffs (N) (jwd) Modified on 08/04/2003 (Entered: 08/04/2003)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 16 of 31

08/14/2003 08/18/2003
08/18/2003 08/27/2003 08/28/2003
08/28/2003 08/29/2003 09/02/2003 09/02/2003

157 MEMORANDUM AND ORDER by Judge Ricardo M. Urbina : denying the plaintiffs' petition [#123] for writ of mandamus; denying motion to strike petition for writ of mandamus [123−1] [127−1] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG, denying motion to dismiss petition for writ of mandamus [123−1] [127−2] by NORBERT R. RYAN, DEPARTMENT OF NAVY, RICHARD J. DANZIG (N) (jwd) (Entered: 08/14/2003)
158 ORDER by Judge Ricardo M. Urbina: order directing the adair plaintiff have until 9/15/03 to file a third amended complaint consisting of their second amended complaint as modified to incorporate the allegations contained in thier first supplement to the first amended complaint; the adair defendants shall have until 10/15/03 to file an answer to the third amended complaint; Chaplaincy plaintiff shall have until 9/15/03 to file a third amended cmplaint consisting of their second amended complaint as modified to incorporate the allegations contained in their first supplement to the secnd amended complaint; Chaplaincy defendantsshall have until 10/15/03 to file an answer to the third amended complaint. (N) (jwd) (Entered: 08/18/2003)
159 RESPONSE by federal defendants in opposition to motion for preliminary and structual injunction [142−1] by plaintiffs, motion for partial summary judgment [142−2] by plaintiffs; attachments (12) . (rje) (Entered: 08/19/2003)
160 JOINT MOTION by plaintiff, federal defendant for leave to file a corrected opposition brief to plaintiff's motion for preliminary structural injunction and partial summary judgment , and to extend time to 9/9/03 for plaintiff's to file a reply to motion for a preliminary structual injunction and partial summary judgment (jf) (Entered: 08/28/2003)
161 ORDER by Judge Ricardo M. Urbina : granting joint motion for leave to file a corrected opposition brief to plaintiff's motion for preliminary structural injunction and partial summary judgment [160−1] by RICHARD J. DANZIG, CHAPLAIN/FULL GOSPEL, granting joint motion to extend time to 9/9/03 for plaintiff's to file a reply to motion for a preliminary structual injunction and partial summary judgment [160−2] by RICHARD J. DANZIG, CHAPLAIN/FULL GOSPEL (N) (jwd) (Entered: 08/28/2003)
162 NOTICE OF SUPPLEMENTAL AUTHORITY by plaintiff concerning motion to compel the secretary of the navy to lift selection board members oath of secretary; attachment (1) (mpt) (Entered: 08/29/2003)
163 RESPONSE (CORRECTED COPY) by federal defendants in opposition to motion for preliminary and structual injunction [142−1] by plaintiffs, motion for partial summary judgment [142−2] by plaintiffs; exhibits (11). (mpt) (Entered: 09/02/2003)
164 MEMORANDUM OPINION by Judge Ricardo M. Urbina granting the plaintiff's motion to compel; denying other pending dicovery motions and directing the parties to submit a revised joint status report. (N) (jwd) (Entered: 09/03/2003)
165 ORDER by Judge Ricardo M. Urbina : denying without prejudice motion for order under Fed.R.Civ.P. 26(b)(2) altering the presumptive limits for the number of depositions and interrogatories in rules 30(a)(2)(A) and 33(a) [129−1] by CHAPLAIN/FULL GOSPEL denying as moot notice [135−1] by plaintiffs denying as moot motion to vacate existing discovery dates [150−1] by plaintiffs, denying without prejudice motion for order referring discovery motions and issues to a Magistrate Judge [137−1] by plaintiffs, denying as moot motion for leave to file a supplemental pleading [136−1] by plaintiffs, denying without prejudice motion for order referring discovery motions and issues to Magistrate Judge [134−1] by plaintiffs, granting motion for order requiring defendant Secretary of the Navy to release personnel associated with Chaplain Promotion Boards from their oath not to disclose promotion board proceedings [125−1] by CHAPLAIN/FULL GOSPEL; directing that by October 31, 2003, the parties submit a revised joint status report, not to exceed 12 pages, that proposes (1) a plan of discovery allowing the plaintiffs to conduct limited discovery of selection−board personnel in a manner that is focus and that mimimizes the possibility of harm to the selection−board process, and (2) an amended discovery schedule that takes into account the parties' progress to date and the current posture of the case. The court expects the parties to stipulate to

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 17 of 31

09/09/2003 09/09/2003 09/15/2003 10/15/2003 10/27/2003
10/28/2003 10/30/2003 10/30/2003 10/30/2003 11/06/2003 11/13/2003
11/19/2003 11/20/2003 11/21/2003

reasonable alterations to the deposition and interrogatory limitations and to resolve any outstanding issues regarding expert disclosure; that the parties take note that to keep this case on track, the court expect a mamimum of cooperation and aminimum of filings from the parties, and toward that end will henceforth strictly enforce its Standing Order and the federal and local discovery rules, imposing sanctions when warranted. (N) (jwd) (Entered: 09/03/2003)
166 REPLY MEMORANDUM by plaintiffs in support of motion for preliminary and structual injunction [142−1] by plaintiffs and motion for partial summary judgment [142−2] by plaintiffs; exhibits (16) (bjsp) (Entered: 09/12/2003)
167 REPLY by plaintiffs in support of motion for preliminary and structual injunction [142−1] motion for partial summary judgment [142−2]; attachments (16) (td) (Entered: 09/24/2003)
168 THIRD AMENDED COMPLAINT by plaintiff adding federal defendant HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, and amending complaint [1−1] .; jury demand ; exhibits (15) (bjsp) Modified on 09/24/2003 (Entered: 09/24/2003)
169 ANSWER TO THIRD AMENDED COMPLAINT [168−1] by federal defendants (bm) (Entered: 10/16/2003)
170 MOTION for Extension of Time to File by MARTHA CARSON, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARK R. JOHNSTON, KLON K. KITCHEN JR., DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING, BARBY EARL Y. (Schulcz, Arthur) (Entered: 10/27/2003)
MINUTE ORDER granting 170 Joint Motion for Extension of Time to File. The parties shall submit their revised joint status report by Friday, November 14, 2003. Signed by Judge Ricardo M. Urbina on 10/28/03. (Entered: 10/28/2003)
171 ENTERED IN ERROR. . . .NOTICE by RICHARD J. DANZIG, DEPARTMENT OF NAVY, GERALD L. HOWEING, HANSFORD T. JOHNSON, DANIEL T. OLIVER of Appeal by All Defendants (Hyde, Michael) Modified on 11/20/2003 (td, ). (Entered: 10/30/2003)
173 NOTICE OF APPEAL as to 164 Memorandum &Opinion, 165 Order by DEPARTMENT OF NAVY, GERALD L. HOWEING, HANSFORD T. JOHNSON; No Fee Required. (td, ) Modified on 11/20/2003 (td, ). (Entered: 11/20/2003)
NOTICE of entered in error document re 171 . The corrected docket entry is number 173. (td, ) (Entered: 11/20/2003)
172 Consent MOTION to Stay Pending Appeal of the Court's September 2, 2003 Memorandum Opinion and Order by all Defendants by RICHARD J. DANZIG, DEPARTMENT OF NAVY, GERALD L. HOWEING, HANSFORD T. JOHNSON, DANIEL T. OLIVER. (Hyde, Michael) (Entered: 11/06/2003)
MINUTE ORDER granting 172 Consent Motion to Stay Memorandum Opinion and Order dated Sept. 2, 2003 Pending Appeal. By no later than January 15, 2003, the parties shall file a joint status report, not to exceed 3 pages, that indicates the status of the appeal and the parties' overall progress on other discovery matters. Signed by Judge Ricardo M. Urbina on 11/13/03. (Entered: 11/13/2003)
ENTERED IN ERROR. . . .Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 173 Notice of Appeal (td, ) Modified on 11/20/2003 (td, ). (Entered: 11/20/2003)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 173 Notice of Appeal (td, ) (Entered: 11/20/2003)
174 MOTION for Entry of Final Judgment under Fed.R.Civ.P 54(b) by MARTHA CARSON, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARK R. JOHNSTON, KLON K. KITCHEN JR., DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING,

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 18 of 31

11/25/2003 12/05/2003 12/12/2003
01/14/2004
05/06/2004 05/06/2004 10/18/2004
12/02/2004 12/02/2004 02/01/2005
02/04/2005
02/07/2005

BARBY EARL Y. (Attachments: # 1 Supplement Memorandum in Support# 2 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Schulcz, Arthur) (Entered: 11/21/2003)
175 USCA Case Number 03−5333 for 173 Notice of Appeal filed by DEPARTMENT OF NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING. (cp, ) (Entered: 12/03/2003)
176 Memorandum in opposition to motion re 174 Certification of a Final Judgment under Federal Rule of Civil Procedure 54(b) filed by DEPARTMENT OF NAVY, GERALD L. HOWEING, HANSFORD T. JOHNSON. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Hyde, Michael) (Entered: 12/05/2003)
177 REPLY in support of motion re 174 filed by MARTHA CARSON, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARK R. JOHNSTON, KLON K. KITCHEN JR., DANIEL E. ROYSDEN, MARY HELEN SPALDING, BARBY EARL Y. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Schulcz, Arthur) (Entered: 12/12/2003)
178 STATUS REPORT in Accord With 11/13/03 Order by MARTHA CARSON, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARK R. JOHNSTON, KLON K. KITCHEN JR., DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING, BARBY EARL Y. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Schulcz, Arthur) (Entered: 01/14/2004)
179 MEMORANDUM OPINION denying 174 Motion for Entry of Final Judgment. Signed by Judge Ricardo M. Urbina on 5/6/04. (Entered: 05/06/2004)
180 ORDER denying 174 Motion for Entry of Final Judgment. Signed by Judge Ricardo M. Urbina on 5/6/04. (Entered: 05/06/2004)
181 USCA JUDGMENT (certified copy) as to 173 Notice of Appeal filed by DEPARTMENT OF NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING;It is hereby ordered and adjudged that the judgment of the District Court appealed from in these causes is hereby reversed in part and vacated in part and the cases are remanded for further proceedings; USCA#03−5329 (jsc) (jsc) (Entered: 10/21/2004)
MINUTE ORDER. The parties shall submit a joint status report regarding how these cases are to proceed by no later than 2/1/05. The parties may consolidate this report with the report requested for Larsen v. Navy if the parties so desire. Signed by Judge Ricardo M. Urbina on 12/2/04. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jp, ) (Entered: 12/02/2004)
Set Deadlines/Hearings: Status Report due by 2/1/2005. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jwd) (Entered: 12/02/2004)
182 STATUS REPORT by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, DEPARTMENT OF NAVY, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Schulcz, Arthur) (Entered: 02/01/2005)
183 MOTION for Order by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Schulcz, Arthur) (Entered: 02/04/2005)
184 ORDER denying 142 Motion for Preliminary Injunction, denying 142 Motion for Partial Summary Judgment . Signed by Judge Ricardo M. Urbina on 2/7/05. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jp, ) (Entered:

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 19 of 31

02/07/2005 03/06/2005 04/01/2005
04/04/2005 04/04/2005
04/04/2005 04/06/2005
04/07/2005 04/11/2005 04/28/2005 05/23/2005 05/24/2005

02/07/2005)
185 MEMORANDUM OPINION. Signed by Judge Ricardo M. Urbina on 2/7/05. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jp, ) (Entered: 02/07/2005)
MINUTE ORDER. Status report due April 1, 2005 . Signed by Judge Ricardo M. Urbina on 3/6/05. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jp, ) (Entered: 03/06/2005)
186 STATUS REPORT by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, CHAPLAINCY OF FULL GOSPEL CHURCHES, DEPARTMENT OF NAVY, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Schulcz, Arthur) (Entered: 04/01/2005)
MINUTE ORDER granting 183 Motion for Order. All discovery related disputes, issues and motions that arise in the above cases shall be referred to Judge Facciola. Signed by Judge Ricardo M. Urbina on 4/4/05. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jp, ) (Entered: 04/04/2005)
MINUTE ORDER. The briefing schedule is as follows: each party shall file a brief (no more than 45 pages) addressing whether the proceedings of active duty continuation and SER boards are protected from civil discovery on or before 5/27/05; the parties shall submit their replies (no more than 25 pages) thereto on or before 6/17/05. The parties are strongly urged to keep their filings concise. Signed by Judge Ricardo M. Urbina on 4/4/05. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jp, ) (Entered: 04/04/2005)
CASE REFERRED to Magistrate Judge John M. Facciola for All Discovery Disputes, Issues and Motions. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jsc) (Entered: 04/05/2005)
188 NOTICE OF INTERLOCUTORY APPEAL as to Court's order entered on February 07, 2005 184 Order on Motion for Preliminary Injunction, Order on Motion for Partial Summary Judgment by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. Filing fee $ 255, receipt number 133423. (jf, ) (Entered: 04/11/2005)
187 Notice to counsel regarding referral to Judge John M. Facciola for discovery. Signed by Magistrate Judge John M. Facciola on 4/7/05. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(SP, ) (Entered: 04/07/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 188 Notice of Interlocutory Appeal, (jf, ) (Entered: 04/11/2005)
USCA Case Number 05−5143 for 188 Notice of Interlocutory Appeal, filed by CHAPLAINCY OF FULL GOSPEL CHURCHES,, MARTHA CARSON,, MARK R. JOHNSTON,, KLON K. KITCHEN, JR., DENISE Y. MERRITT,, DANIEL E. ROYSDEN,, MARY HELEN SPALDING,, BARBY EARL Y,, ROBERT DUANE PURSER,. (jf, ) (Entered: 04/29/2005)
189 Joint MOTION for Extension of Time to File Briefs by DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/23/2005)
MINUTE ORDER granting 189 Motion for Extension of Time. The deadline for the parties to file opening memoranda on whether the deliberations of the Navy Chaplain Corps selective early retirement and active−duty continuation boards are protected from civil discovery is Friday, June 17, 2005, and for reply memoranda is Friday, July 22, 2005. Signed by Judge Ricardo M. Urbina on 5/24/05. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(jp, ) (Entered:

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 20 of 31

06/17/2005
06/17/2005 07/22/2005 07/22/2005 08/12/2005 08/12/2005

05/24/2005)
190 MEMORANDUM by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit Ex 1, Statutes# 2 Exhibit Ex 2, Wilkins# 3 Exhibit Ex 3, SER Precept# 4 Exhibit Ex 4, Bd members 77−02# 5 Exhibit Ex 5, Board demographics# 6 Exhibit Ex 6, SER candidates# 7 Exhibit Ex 7, Rock deposition# 8 Exhibit Ex 8, SER bd mbrs# 9 Exhibit Ex 9, Expert Report# 10 Appendix Ex 9 Appendix A# 11 Appendix Ex 9 Appendix B# 12 Appendix Ex 9 Appendix C# 13 Appendix Text for Ex (9Appendix D# 14 Appendix Data for Ex 9 Appendix D# 15 Appendix Appendix E for Ex 9# 16 Exhibit Ex 10, NIG Interview# 17 Exhibit Ex 11, Declaration re exhibits# 18 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 06/17/2005)
191 SUPPLEMENTAL MEMORANDUM Regarding the Discoverability of Deliberations of Navy Chaplain Corps Active−Duty Selective Early Retirement Boards filed by HANSFORD T. JOHNSON, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Supplement Second Part of Memorandum# 2 Exhibit # 3 Exhibit # 4 # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 06/17/2005)
192 REPLY Memorandum Regarding the Discoverability of Deliberations of Navy Chaplain Corps Active−Duty Selective Early Retirement Boards filed by HANSFORD T. JOHNSON, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 07/22/2005)
193 REPLY to Defendants SER Memorandum filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit Ex 1,Expert Declaration# 2 Exhibit Ex 2, Expert Compendium# 3 Appendix Apx I to Ex 2# 4 Appendix Apx J to Ex 2# 5 Appendix Apx K to Ex 2# 6 Appendix Apx L1 to Ex 2# 7 Appendix Apx L2 to Ex 2# 8 Appendix Apx L3 to Ex 2# 9 Appendix Apx M to Ex 2# 10 Appendix Apx N to Ex 2# 11 Appendix Apx O to Ex 2# 12 Appendix Apx O2 to Ex 2# 13 Appendix Apx P to Ex 2# 14 Exhibit Exhibit 3# 15 Exhibit Exhibit 4# 16 Exhibit Exhibit 5)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 07/22/2005)
194 Consent MOTION for Order Establishing Briefing Schedule by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 08/12/2005)
195 MOTION for Declaratory Judgment by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit !.a Kitchen Declaration# 2 Exhibit Ex.1b, Ellison Affid# 3 Exhibit Ex.2, Steewaart Decl# 4 Exhibit Ex.3, Bd. Misconduct# 5 Exhibit Ex.4, NIG Holderby# 6 Exhibit Ex.6, NIG Board Mbr# 7 Exhibit Ex6, Expert Compenduim# 8 Appendix Appendix M to Ex6# 9 Exhibit Ex.7, Delc Dr. Crick# 10 Exhibit Exhibit 8, Expert Suppliment# 11 Appendix Appe A to Ex 8# 12 Exhibit Additon to Ex.8# 13 Exhibit Ex.9 Decl re exhibits)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 21 of 31

10/07/2005 10/08/2005 10/08/2005 10/08/2005 10/08/2005 10/08/2005 10/08/2005 10/08/2005 10/08/2005 10/08/2005 10/08/2005

(Entered: 08/12/2005)
196 Memorandum in opposition to motion re 195 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 10/07/2005)
197 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Proposed Order and Exhibits 1−5 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 # 5 Exhibit 5)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
198 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Proposed Order filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
199 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhjibit 6 Part 1 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
200 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 6 Part 2 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
201 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 7 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
202 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 8 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
203 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 9 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
204 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 10 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
205 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 11 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
206 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 12 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 22 of 31

10/08/2005 10/08/2005 10/10/2005 10/11/2005 10/11/2005 10/12/2005 11/08/2005 02/24/2006 02/24/2006

Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
207 MOTION for Extension of Time to File and to Accept Filing of Exhibits and Proposed Order by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 10/08/2005)
209 NOTICE of Filing Exhibits and Proposed Order re 196 Memorandum in opposition to motion re 195 by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6 Part 1# 8 Exhibit 6 Part 2# 9 Exhibit 7# 10 Errata 8# 11 Exhibit 9# 12 Errata 10# 13 Exhibit 11# 14 Exhibit 12)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(nmw, ) Modified on 10/12/2005 (nmw, ). (Entered: 10/12/2005)
ORDER granting 207 Motion for Extension of Time to File. ORDERED that the motion is GRANTED and that the deadline for defendants to filetheir proposed order and exhibits in opposition to plaintiffs? Motion for Declaratory Judgment, Summary Judgment, and an Injunction shall be 12:30 am on October 8, 2005. Signed by Judge Ricardo M. Urbina on 10/10/05. (djr) (Entered: 10/10/2005)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF (Entered: 10/10/2005)
NOTICE OF CORRECTED DOCKET ENTRY: Document Nos. 197−206 were entered in error and will be refiled as one pleading. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(nmw, ) (Entered: 10/11/2005)
208 MOTION for Extension of Time to File Response/Reply as to 196 Memorandum in Opposition by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order Order extending time to Reply)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 10/11/2005)
ORDER granting 208 Motion for Extension of Time to File Response/Reply. Reply due November 8, 2005. Signed by Judge Ricardo M. Urbina on 10/12/05. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 10/12/2005)
210 REPLY to opposition to motion re 195 filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit Ex.A−Def In re England Opening Brief)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 11/08/2005)
211 MOTION for Entry of Declaratory Judgment by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Statement of Facts # 2 Appendix Memorandum Points and Auth# 3 Exhibit Statement re exhibits# 4 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 02/24/2006)
212 MOTION (and/or) for Partial Summary Judgment by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Please see Document No. 211 for scanned images). Associated Cases:

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 23 of 31

03/02/2006 03/02/2006 03/08/2006 03/08/2006 03/16/2006 03/16/2006
03/16/2006 04/05/2006 04/21/2006

1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(nmw, ) (Entered: 02/27/2006)
213 Joint MOTION for Extension of Time to File Response/Reply and to Establish a Briefing Schedule by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 03/02/2006)
214 ERRATA Corrected Proposed Order for Joint Motion to Establish a Briefing Schedule by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 03/02/2006)
215 ORDER allowing the discovery of the deliberations of active−duty selective early retirement selection boards. Signed by Magistrate Judge John M. Facciola on 3/7/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(lcjf1, ) (Entered: 03/08/2006)
216 MEMORANDUM OPINION re ORDER allowing discovery of the deliberations of selective early retirement selection boards. Signed by Magistrate Judge John M. Facciola on 3/7/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(lcjf1, ) (Entered: 03/08/2006)
217 Consent MOTION for Extension of Time to File Objections to Magistrate Judge's Order AND to Stay Such Order Pending Appeal by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 03/16/2006)
MINUTE ORDER granting 217 Motion for Extension of Time to File. The defendants' objections to and motion to reconsider Magistrate Judge Facciola's March 8, 2006 Opinion and Order is due Friday, April 21, 2006. It is FURTHER ORDERED that Magistrate Judge Facciola's March 8, 2006 Opinion and Order is STAYED pending resolution of defendants' objections to and appeal of the Opinion and Order. Signed by Judge Ricardo M. Urbina on 3/16/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 03/16/2006)
Set Deadlines/Hearings: Defendants' Objections to and motion to reconsider Magistrate Judge Facciola's March 8, 2006 Opinion and Order is due Friday, 4/21/2006. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(jwd, ) (Entered: 03/16/2006)
218 Joint MOTION for Extension of Time to File Response/Reply and to Revise Briefing Schedules by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 04/05/2006)
219 MOTION for Reconsideration re 215 Order, 216 Memorandum &Opinion re: allowing discovery of the deliberations of selective early retirement selection boards by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Memorandum in Support# 2 Text of Proposed Order # 3 Exhibit 1# 4 Exhibit 2# 5 Exhibit 3# 6 Exhibit 4# 7 Exhibit 5# 8 Exhibit 6# 9 Exhibit 7# 10 Exhibit 8# 11 Exhibit 9# 12 Exhibit 10# 13 Exhibit 11)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(nmw, ) (Entered: 04/24/2006)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 24 of 31

05/09/2006 05/09/2006
05/15/2006
05/22/2006 05/24/2006 05/24/2006 05/25/2006 05/26/2006

220 Consent MOTION for Extension of Time to In Briefing Schedule for Plaintiffs' Motion for Declaratory and/or Summary Judgment by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/09/2006)
MINUTE ORDER granting 220 Motion for Extension of Time. The court sets forth the following revised schedule. May 22, 2006: Defendants will file their opposition to plaintiffs' Motion for Declaratory Judgment and/or Partial Summary Judgment and may also file dispositive motions; July 7, 2006: Plaintiffs will file their reply in support of their Motion for Declaratory Judgment and/or Partial Summary Judgment and an opposition to any dispositive motionsfiled by defendants; August 11, 2006: Defendants will file a reply in support of any dispositive motions filed by them. Signed by Judge Ricardo M. Urbina on 5/9/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 05/09/2006)
221 Memorandum in opposition to re 219 MOTION for Reconsideration re 215 Order, 216 Memorandum &Opinion filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit Exhibit 1, Wilkins v. USA# 2 Exhibit Exhibit 2, statutes# 3 Exhibit Exhibit 3, declaration# 4 Exhibit Exhibit 4, Expert 2005 decl# 5 Exhibit Exhibit 5, Expert Declaration# 6 Exhibit Exhibit 6, 95 SER Precept# 7 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 05/15/2006)
222 Consent MOTION for Extension of Time to File Response/Reply for a two calendar day extension in the briefing schedule for plaintiffs' motion for declaratory and/or partial summary judgment by HANSFORD T. JOHNSON, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/22/2006)
223 Memorandum in opposition to re 212 MOTION for Partial Summary Judgment, 211 MOTION for Entry of Declaratory Judgment and Cross−Motion to Dismiss, or in the Alternative for Partial Summary Judgment filed by HANSFORD T. JOHNSON, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Notice of Attachment of Exhibits# 2 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/24/2006)
224 Cross MOTION to Dismiss Claims in Plaintiffs' Motion for Declaratory Judgment and.or Partial Summary Judgment, Cross MOTION for Summary Judgment in the Alternative by HANSFORD T. JOHNSON, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Notice Regarding Exhibit Attachment# 2 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/24/2006)
225 Consent MOTION for Extension of Time to File Response/Reply for an Extension of Time to File Reply in Favor of Appeal of Magistrate Judge's Order by HANSFORD T. JOHNSON, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/25/2006)
MINUTE ORDER granting 225 Motion for Extension of Time to File Response/Reply, now due June 12, 2006. The court cautions the parties that the court disfavors extensions of time. See Standing Order. Accordingly, the court will no longer grant extensions of time absent significant justification (e.g. family emergency). The significant burdens of this litigation upon counsel are a product, in part, of their own rapid fire filings. Signed by Judge Ricardo M. Urbina on

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 25 of 31

05/26/2006 06/12/2006 07/11/2006 07/12/2006 07/12/2006
07/12/2006 07/12/2006 08/11/2006

5/26/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 05/26/2006)
Set Deadlines/Hearings: Response/Ewply by HANSFORD T. JOHNSON, RICHARD J. DANZIG, DEPARTMENT OF NAVY due 6/12/2006. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(jwd) (Entered: 05/26/2006)
226 REPLY to opposition to motion re 219 MOTION for Reconsideration re 215 Order, 216 Memorandum &Opinion filed by HANSFORD T. JOHNSON, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 06/12/2006)
227 SUPPLEMENTAL MEMORANDUM to 223 Defendants' Responses to Plaintiffs' Proposed Statement of Material Facts to which There Is No Genuine Dispute filed by HANSFORD T. JOHNSON, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Ex. A)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 7/12/2006 (nmw, ). (Entered: 07/11/2006)
228 REPLY to opposition to motion re 212 MOTION for Partial Summary Judgment filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Statement of Facts Reply to Response to Facts# 2 Exhibit Notice of Exhibits)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 07/12/2006)
229 Memorandum in opposition to re 224 Cross MOTION to Dismiss Claims in Plaintiffs' Motion for Declaratory Judgment and.or Partial Summary JudgmentCross MOTION for Summary Judgment in the AlternativeCross MOTION for Summary Judgment in the Alternative filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order # 2)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 07/12/2006)
230 MOTION for Extension of Time to File Response/Reply by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 07/12/2006)
MINUTE ORDER granting 230 Motion for Extension of Time to File Response/Reply. Signed by Judge Ricardo M. Urbina on 7/12/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 07/12/2006)
231 REPLY to opposition to motion re 224 Cross MOTION to Dismiss Claims in Plaintiffs' Motion for Declaratory Judgment and.or Partial Summary JudgmentCross MOTION for Summary Judgment in the AlternativeCross MOTION for Summary Judgment in the Alternative filed by DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Ex. B# 2 Exhibit Ex. C# 3 Exhibit Ex. D# 4 Exhibit Ex. E)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 08/11/2006)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 26 of 31

09/11/2006 09/11/2006 09/11/2006 09/11/2006 09/11/2006
09/18/2006
10/20/2006 12/15/2006 12/15/2006

232 ORDER denying 195 Motion for Declaratory Judgment. Signed by Judge Ricardo M. Urbina on 9/11/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 09/11/2006)
233 MEMORANDUM AND OPINION. Signed by Judge Ricardo M. Urbina on 9/11/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 09/11/2006)
234 ORDER denying 219 Motion for Reconsideration. Signed by Judge Ricardo M. Urbina on 9/11/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 09/11/2006)
235 MEMORANDUM AND OPINION. Signed by Judge Ricardo M. Urbina on 9/11/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 09/11/2006)
MINUTE ORDER denying without prejudice 211 Motion for Declaratory Judgment, denying 212 Motion for Partial Summary Judgment, denying 224 Motion to Dismiss, denying 224 Motion for Summary Judgment. Signed by Judge Ricardo M. Urbina on 9/11/06. On July 7, 2006, the Court of Appeals issued a ruling in this case. In addition, on September 11, 2006, this court issued two rulings. In light of these rulings, the parties may wish to revise their overall substantive positions. Additionally, the parties need to reconsider their position with respect to the procedural posture of this case. The parties are ORDERED to confer and discuss the status of this case going forward. The parties, after conferring, may refile their motions, or may file alternative motions. The parties may file a joint status report to the court indicating their understanding of the status of this case, including any immediately anticipated activity. SO ORDERED. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 09/11/2006)
236 USCA JUDGMENT (certified copy) as to 188 Notice of Interlocutory Appeal, filed by CHAPLAINCY OF FULL GOSPEL CHURCHES,, MARTHA CARSON,, MARK R. JOHNSTON,, KLON K. KITCHEN, JR., DENISE Y. MERRITT,, DANIEL E. ROYSDEN,, MARY HELEN SPALDING,, BARBY EARL Y,, ROBERT DUANE PURSER; It is hereby ordered and adjudged that the judgment of the District Court appealed from in these cause is hereby affirmed in part, reversed in part dismissed in part vacated in part and remanded for further proceedings; USCA#05−5143 (jsc) (Entered: 09/25/2006)
MINUTE ORDER that this case is hereby STAYED pending a ruling by the D.C. Circuit in Miller v. Department of the Navy, USCA No. 05−5343. Signed by Judge Ricardo M. Urbina on 10/20/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 10/20/2006)
237 MOTION to Amend/Correct 10/20/2006 Order or Lift Stay by MARY HELEN SPALDING, BARBY EARL Y, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 12/15/2006)
238 MOTION to Lift Stay by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Please see Document No. 237 in 99cv2945 for scanned image). Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(nmw, ) (Entered: 12/18/2006)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 27 of 31

12/29/2006 01/08/2007
01/24/2007
01/24/2007 02/05/2007
02/06/2007 02/06/2007 02/09/2007 02/13/2007 02/21/2007

239 Memorandum in opposition to re 238 MOTION to Lift Stay, 237 MOTION to Amend/Correct 10/20/2006 Order or Lift Stay filed by DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 12/29/2006)
240 REPLY to opposition to motion re 237 MOTION to Amend/Correct 10/20/2006 Order or Lift Stay filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit Reply Exhibit 1# 2 Exhibit Reply Ex 2)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 01/08/2007)
MINUTE ORDER denying 237 Motion to Amend/Correct, denying 238 Motion to lift the stay as moot. The D.C. Circuit, on January 19, 2007, issued its ruling in Miller v. Department of the Navy, USCA No. 05−5343. The court hereby lifts the stay in this case and directs the parties to discuss the status of this case going forward and to take action consistent with the court's September 11, 2006 order. Signed by Judge Ricardo M. Urbina on 1/24/07. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) Modified on 1/24/2007 (jwd, ). (Entered: 01/24/2007)
Remark: Minute Order Entry of 1/24/2007 corrected to refect that " the parties to discuss the status of this case going forward and to take action cinsistent with the Court's September 11, 2006 Order." "the entry previously read September 11, 2007 and the year was incorrect." Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(jwd) (Entered: 01/24/2007)
241 MOTION for Reconsideration re 215 Order, 235 Memorandum &Opinion, 216 Memorandum &Opinion, 234 Order on Motion for Reconsideration, MOTION for Protective Order by HANSFORD T. JOHNSON, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 02/05/2007)
242 NOTICE of Appearance by Daniel Edward Bensing on behalf of all defendants Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Bensing, Daniel) (Entered: 02/06/2007)
243 MOTION to Consolidate Cases by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 # 2)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Bensing, Daniel) (Entered: 02/06/2007)
244 STATUS REPORT (JOINT) by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 02/09/2007)
245 ORDER setting forth briefing schedules. Signed by Judge Ricardo M. Urbina on 2/13/07. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 02/13/2007)
246 Memorandum in opposition to re 243 MOTION to Consolidate Cases filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER,

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 28 of 31

03/05/2007 03/09/2007
03/10/2007 03/10/2007 03/12/2007 03/12/2007
03/26/2007

CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 02/21/2007)
247 REPLY to opposition to motion re 243 MOTION to Consolidate Cases filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DANIEL T. OLIVER, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Bensing, Daniel) (Entered: 03/05/2007)
248 MEMORANDUM by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit # 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) Modified on 3/12/2007 (zlc, ). (Entered: 03/09/2007)
249 Deemed filed on March 9, 2007 pursuant to Minute Order dated 3/12/2007.....MEMORANDUM by DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 3/12/2007 (zlc, (Entered: 03/10/2007)
250 MOTION for Extension of Time to File Memorandum, MOTION Deem Memorandum as Timely Filed by DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 03/10/2007)
MINUTE ORDER in cases 1:00−cv−00566−RMU−JMF and 1:99−cv−02945−RMU−JMF ; GRANTING (250) Motion for Extension of Time to File. The defendants' opening memorandum is deemed filed on March 9, 2007. Signed by Ricardo M. Urbina on 3/12/07. Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(djr) Modified on 3/20/2007 (lcrmu1, ). (Entered: 03/12/2007)
251 ERRATA by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN 248 Memorandum,, filed by MARY HELEN SPALDING, DANIEL E. ROYSDEN, DENISE Y. MERRITT, KLON K. KITCHEN, JR., CHAPLAINCY OF FULL GOSPEL CHURCHES, ROBERT DUANE PURSER, MARK R. JOHNSTON, MARTHA CARSON, BARBY EARL Y. (Attachments: # 1 Exhibit 14# 2 Exhibit 16)(Schulcz, Arthur) (Entered: 03/12/2007)
252 ENTERED IN ERROR.....Memorandum in opposition to re (241 in 1:99−cv−02945−RMU−JMF, 241 in 1:99−cv−02945−RMU−JMF, 180 in 1:00−cv−00566−RMU−JMF, 180 in 1:00−cv−00566−RMU−JMF) MOTION for Reconsideration re (215) Order, (235) Memorandum &Opinion, (216) Memorandum &Opinion, (234) Order on Motion for Reconsideration MOTION for Reconsideration re (215) Order, (235) Memorandum &Opinion, (216) Memorandum &Opinion, (234) Order on Motion for Reconsideration MOTION for Protective Order filed by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, MARY HELEN SPALDING,

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 29 of 31

03/26/2007
03/27/2007 04/12/2007 04/13/2007
04/16/2007 04/27/2007

BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Schulcz, Arthur) Modified on 3/27/2007 (jf, ). (Entered: 03/26/2007)
253 Memorandum in opposition to re (241 in 1:99−cv−02945−RMU−JMF, 241 in 1:99−cv−02945−RMU−JMF, 180 in 1:00−cv−00566−RMU−JMF, 180 in 1:00−cv−00566−RMU−JMF) MOTION for Reconsideration re (215) Order, (235) Memorandum &Opinion, (216) Memorandum &Opinion, (234) Order on Motion for Reconsideration MOTION for Reconsideration re (215) Order, (235) Memorandum &Opinion, (216) Memorandum &Opinion, (234) Order on Motion for Reconsideration MOTION for Protective Order filed by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 03/26/2007)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 252 Memorandum in Opposition,,,, was entered in error as a duplicate to # 253 (jf, ) (Entered: 03/27/2007)
254 Consent MOTION for Extension of Time to File Response/Reply Addressing Mandate by Court of Appeals on Plaintiffs' Motion for a Preliminary Injunction by DEPARTMENT OF NAVY (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 04/12/2007)
255 REPLY re (188 in 1:00−cv−00566−RMU−JMF) Memorandum, filed by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit Exhibit List# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 04/13/2007)
MINUTE ORDER granting (193) Motion for Extension of Time to File Response/Reply in case 1:00−cv−00566−RMU−JMF; granting (254) Motion for Extension of Time to File Response/Reply in case 1:99−cv−02945−RMU−JMF. It is HEREBY ORDERED that the deadline set by the Courts Order dated February 13, 2007 [CFGCdocket no. 245] for the parties to file reply memoranda related to the remand by the Court of Appeals in CFGC v. Winter, 454 F.3d 290 (D.C. Cir. 2006), originally set for April 13, 2007, isextended to Tuesday, May 1, 2007. Signed by Judge Ricardo M. Urbina on 4/16/07. Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(djr) (Entered: 04/16/2007)
256 REPLY to opposition to motion re (241 in 1:99−cv−02945−RMU−JMF, 241 in 1:99−cv−02945−RMU−JMF, 180 in 1:00−cv−00566−RMU−JMF, 180 in 1:00−cv−00566−RMU−JMF) MOTION for Reconsideration re (215) Order, (235) Memorandum &Opinion, (216) Memorandum &Opinion, (234) Order on Motion for Reconsideration MOTION for Reconsideration re (215) Order, (235)

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 30 of 31

05/01/2007 05/01/2007 05/04/2007 05/21/2007 06/18/2007 08/18/2008

Memorandum &Opinion, (216) Memorandum &Opinion, (234) Order on Motion for Reconsideration MOTION for Protective Order filed by DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 04/27/2007)
257 RESPONSE to Plaintiffs' Memorandum Addressing Mandate by Court of Appeals on Plaintiffs's Motion for a Preliminary Injunction filed by DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G# 8 Exhibit Exhibit H# 9 Exhibit Exhibit I# 10 Exhibit Exhibit J# 11 Exhibit Exhibit K# 12 Exhibit Exhibit L)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/01/2007)
258 REPLY re (188 in 1:00−cv−00566−RMU−JMF) Memorandum, to Defendants' Opening Brief filed by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit H# 2 Exhibit I# 3 Exhibit J)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 05/01/2007)
259 Unopposed MOTION for Leave to File Surreply by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 05/04/2007)
260 SURREPLY to re (196 in 1:00−cv−00566−RMU−JMF) Response to any document,, Defendnats' Mandate Reply Memorandum filed by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 05/21/2007)
261 MEMORANDUM ORDER denying Motion to Transfer Case; granting the defendants' motion to consolidate 259 ; denying all pending motions without prejudice; directing that this case be incorporated into a new miscellaneous case number 07−269 and all further pleadings be filed in the miscellaneous case; parties may refile motions in Miscellaneous No 07mc269;administratively closing the civil actions pending further orderof the Court. Signed by Judge Ricardo M. Urbina on 06/18/07. (jeb, ) (Entered: 06/18/2007). Signed by Judge Ricardo M. Urbina on 6/18/07. (jeb, ) (Entered: 06/18/2007)
262 MOTION for Order Amending Third Amended Complaint by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF

Case: 1:99-cv-2945 As of: 02/14/2013 07:30 AM EST 31 of 31

10/10/2008
11/10/2008 01/30/2009 01/30/2009 01/30/2009 01/30/2009

FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN (Attachments: # 1 Exhibit Amended Complaint, # 2 Exhibit 1 to Amended Complaint, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Text of Proposed Order)(Schulcz, Arthur) (Entered: 08/18/2008)
263 Memorandum in opposition to re (202 in 1:00−cv−00566−RMU) MOTION for Order Amending Third Complaint filed by NORBERT R. RYAN, BYRON HOLDERBY, JR, DEPARTMENT OF NAVY, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, GERALD L. HOEWING, HANSFORD T. JOHNSON, GERALD L. HOWEING, DANIEL T. OLIVER. Associated Cases: 1:99−cv−02945−RMU, 1:00−cv−00566−RMU(Hall, Christopher) (Entered: 10/10/2008)
264 REPLY to opposition to motion re 262 MOTION for Order Amending Third Amended Complaint filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Schulcz, Arthur) (Entered: 11/10/2008)
265 MEMORANDUM OPINION in case 1:07−mc−00269−RMU; granting (202) the plaintiffs' motion to amend in case 1:00−cv−00566−RMU; granting (262) the plaintiffs' motion to amend in case 1:99−cv−02945−RMU. Signed by Judge Ricardo M. Urbina on 01/30/2009. (lcrmu1) Modified on 1/30/2009 (jwd ). (Entered: 01/30/2009)
NOTICE OF CORRECTED DOCKET ENTRY: re docket entry 265 entry has been corrected to read "Memorandum Opinion." (jwd) (Entered: 01/30/2009)
266 ORDER in case 1:07−mc−00269−RMU; granting (202) the plaintiffs' motion to amend in case 1:00−cv−00566−RMU; granting (262) the plaintiffs' motion to amend in case 1:99−cv−02945−RMU. Signed by Judge Ricardo M. Urbina on 01/30/2009. (lcrmu1) (Entered: 01/30/2009)
267 FOURTH AMENDED COMPLAINT against DONALD C. WINTER, GERALD L. HARVEY, UNITED STATES NAVY filed by BARBY EARL WILSON, MARY HELEN SPALDING, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23)(nmw, ) (Entered: 02/02/2009)

 
 Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 1 of 32
APPEAL,CLOSED,TYPE−E
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:00−cv−00566−RMU

ADAIR, et al v. DANZIG, et al Assigned to: Judge Ricardo M. Urbina Demand: $0 Lead case: 1:99−cv−02945−RMU Member case: (View Member Case) Case: 1:07−mc−00269−GK
Case in other court: U.S. Court of Appeals, 03−05334
USCA, 05−05144
USCA, 06−05074 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 03/17/2000 Date Terminated: 06/28/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

ROBERT H. ADAIR

represented by Arthur A. Schulcz , Sr. THE LAW OFFICE OF ARTHUR A. SCHULCZ, SR. 2521 Drexel Street Vienna, VA 22180−6907 (703) 645−4010 Fax: (703) 645−4011 Email: arthur.schulcz@vacoxmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MICHAEL BELT

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GREGORY R. DE MARCO

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff FURNISS HARKNESS

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MICHAEL LAVELLE

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GEORGE W. LINZEY

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 2 of 32

TIMOTHY D. NALL

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff THOMAS RUSH

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JAMES M. WEIBLING

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
JOHNS ADAMS TERMINATED: 09/15/2003

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
JOHN WITHERSPOON TERMINATED: 02/02/2009

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff RICHARD F. HAMME

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
RICHARD J. DANZIG Secretary of the United States Navy TERMINATED: 09/15/2003

represented by Christopher R. Hall U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW Room 7224 Washington, DC 20530 (202) 514−4778 Fax: (202) 616−8202 Email: christopher.hall@usdoj.gov LEAD ATTORNEY
Michael Q. Hyde US DEPARTMENT OF JUSTICE Civil Division/Federal Programs Branch P.O. Box 883 Washington, DC 20044−0883 (202) 514−3338 Fax: (202) 616−8470 Email: michael.hyde@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Edward Caballero OFFICE OF SENATE LEGAL COUNSEL

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 3 of 32

642 Hart Senate Office Building Washington, DC 20510−7250 (202) 224−4435 Fax: (202) 224−3391 Email: thomas_caballero@legal.senate.gov TERMINATED: 05/17/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
NORBERT R. RYAN Vice Admiral, Chief of Naval Personnel TERMINATED: 09/15/2003

represented by Christopher R. Hall (See above for address) LEAD ATTORNEY

Michael Q. Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Edward Caballero (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
BYRON HOLDERBY, JR. Rear Admiral, Chief of Chaplains TERMINATED: 02/02/2009

represented by Christopher R. Hall (See above for address) LEAD ATTORNEY

Michael Q. Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Edward Caballero (See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Edward Bensing U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave N.W. Suite 6114 Washington, DC 20530 (202) 305−0693 Fax: (202) 616−8460 Email: daniel.bensing@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
DEPARTMENT OF NAVY TERMINATED: 02/02/2009

represented by Christopher R. Hall (See above for address) LEAD ATTORNEY

Michael Q. Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Edward Caballero

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 4 of 32

(See above for address) TERMINATED: 05/17/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Edward Bensing (See above for address) ATTORNEY TO BE NOTICED

Defendant
DONALD C. WINTER The Honorable

Defendant
HARVEY Vice Admiral

Defendant
ROBERT BURT Rear Admiral

Defendant UNITED STATES NAVY

Plaintiff MICHAEL A. WRIGHT

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff WILLIAM C. BLAIR

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff LARRY FARRELL

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff RAFAEL J. QUILES

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff LYLE SWANSON

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
RONALD TOMLIN TERMINATED: 11/19/2007

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 5 of 32

Plaintiff DAVID S. WILDER

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant BARRY BLACK Rear Admiral TERMINATED: 09/15/2003
Defendant LOUIS V. IASIELLO Rear Admiral, Chief of Chaplains TERMINATED: 02/02/2009
Defendant DEPUTY CHIEF OF CHAPLAINS
Defendant GERALD L. HOEWING Vice Admiral , Chief of Naval Personnel TERMINATED: 02/02/2009

represented by Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Q. Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher R. Hall (See above for address) LEAD ATTORNEY
Michael Q. Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher R. Hall (See above for address) LEAD ATTORNEY
Michael Q. Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher R. Hall (See above for address) LEAD ATTORNEY
Michael Q. Hyde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Edward Bensing (See above for address) ATTORNEY TO BE NOTICED

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 6 of 32

Date Filed 03/17/2000
03/17/2000 05/09/2000 05/11/2000
06/09/2000 06/16/2000 06/22/2000
06/23/2000 07/25/2000 07/31/2000 08/07/2000 08/07/2000 08/09/2000 08/09/2000

# Docket Text
1 COMPLAINT filed by plaintiff ROBERT H. ADAIR, plaintiff MICHAEL BELT, plaintiff GREGORY R. DE MARCO, plaintiff FURNISS HARKNESS, plaintiff MICHAEL LAVELLE, plaintiff GEORGE W. LINZEY, plaintiff TIMOTHY D. NALL, plaintiff THOMAS − RUSH, plaintiff JAMES M. WEIBLING, plaintiff JOHNS ADAMS, plaintiff JOHN WITHERSPOON; exhibits (4) (tb) (Entered: 03/21/2000)
SUMMONS (6) issued to federal party(s) federal defendant RICHARD J. DANZIG, federal defendant NORBERT R. RYAN, federal defendant BYRON HOLDERBY JR., federal defendant NAVY , and non−parties: U.S. Attorney and U.S. Attorney General. (tb) (Entered: 03/21/2000)
3 JOINT MOTION by plaintiff, federal defendant to extend time to June 12, 2000 to answer complaint [1−1] (jf) (Entered: 05/11/2000)
2 ORDER by Judge June L. Green : extending time to 06/12/00 to answer complaint [1−1] Answer extended to 6/12/00 for NAVY, for BYRON HOLDERBY JR., for NORBERT R. RYAN, for RICHARD J. DANZIG; directing that plaintiffs' time for filing a motion for class certification is extended for thirty days after either defendants file an answer to the complaint or the Court rules on any motion to dismiss by the defendants. (N) (jeb) (Entered: 05/11/2000)
4 MOTION (STIPULATION) filed by plaintiffs and federal defendants to extend time to 6/16/00 to file a motion to dismiss the complaint (bjsp) (Entered: 06/13/2000)
5 MOTION filed by federal defendant RICHARD J. DANZIG, federal defendant NORBERT R. RYAN, federal defendant BYRON HOLDERBY JR., federal defendant NAVY to dismiss complaint [1−1] (ab) (Entered: 06/19/2000)
6 ORDER by Judge June L. Green : granting motion to extend time to 6/16/00 to file a motion to dismiss the complaint [4−1] by RICHARD J. DANZIG, ROBERT H. ADAIR; motion to dismiss due by 6/16/00 ; response to motion to dismiss due by 7/28/00 ; reply to motion to dismiss due by 8/11/00 ; (N) (jeb) (Entered: 06/22/2000)
7 MOTION filed by plaintiffs for partial summary judgment ; Exhibits (19) (tth) (Entered: 06/27/2000)
8 MOTION filed by federal defendant RICHARD J. DANZIG, federal defendant NORBERT R. RYAN, federal defendant BYRON HOLDERBY JR., federal defendant NAVY to hold in abeyance proceedings on plaintiffs' joint motion for partial summary judgment (dam) (Entered: 07/26/2000)
9 STIPULATION filed and fiated by Judge June L. Green regarding extending plaintiffs' time to file an opposition to defendants' motion to dismiss. (N) (dam) (Entered: 07/31/2000)
10 RESPONSE by plaintiff in opposition to motion to dismiss complaint [1−1] [5−1] by NAVY, BYRON HOLDERBY JR., NORBERT R. RYAN, RICHARD J. DANZIG .; exhibits (23) (tb) (Entered: 08/08/2000)
11 MOTION filed by plaintiff for partial summary judgment (tb) (Entered: 08/08/2000)
12 JOINT MOTION (Stipulation) by plaintiffs, federal defendants to extend time to 8/18/00 to file their response to defendant's motion to hold in abeyance proceedings on plaintiff's joint motion for summary judgment (ks) (Entered: 08/15/2000)
13 ERRATA by plaintiffs to their opposition to defendant's motion to dismiss and their motion for partial summary judgment; Attachments (2). (ks) (Entered: 08/17/2000)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 7 of 32

08/17/2000 08/17/2000 08/28/2000
09/01/2000 09/05/2000
09/22/2000 09/25/2000 09/26/2000 09/26/2000
09/26/2000 09/26/2000 10/21/2000

14 ORDER by Judge June L. Green : granting joint motion to extend time to 8/18/00 to file their response to defendant's motion to hold in abeyance proceedings on plaintiff's joint motion for summary judgment [12−1] by federal defendants, plaintiff. (N) (ks) (Entered: 08/17/2000)
15 ORDER by Judge June L. Green : granting parties stipulation extending time for defendant's to file a reply memorandum in support of their motion to dismiss to 9/1/00. (N) (ks) (Entered: 08/17/2000)
16 REPLY by federal defendant RICHARD J. DANZIG, federal defendant NORBERT R. RYAN, federal defendant BYRON HOLDERBY JR., federal defendant NAVY in support of motion to hold in abeyance proceedings on plaintiffs' joint motion for partial summary judgment [8−1] by NAVY, BYRON HOLDERBY JR., NORBERT R. RYAN, RICHARD J. DANZIG; exhibits (1 (tb) (Entered: 08/29/2000)
17 REPLY by federal defendants RICHARD J. DANZIG, NORBERT R. RYAN, BYRON HOLDERBY , NAVY in support of their motion to dismiss complaint [1−1] [5−1] (cjp) (Entered: 09/05/2000)
18 AMENDED COMPLAINT by plaintiff ROBERT H. ADAIR, plaintiff MICHAEL BELT, plaintiff GREGORY R. DE MARCO, plaintiff FURNISS HARKNESS, plaintiff MICHAEL LAVELLE, plaintiff GEORGE W. LINZEY, plaintiff TIMOTHY D. NALL, plaintiff THOMAS RUSH, plaintiff JAMES M. WEIBLING, plaintiff JOHNS ADAMS, plaintiff JOHN WITHERSPOON adding plaintiff MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, federal defendant BARRY BLACK, U.S. DEPT. OF NAVY, and amending complaint [1−1].; exhibits (6) (dam) Modified on 09/06/2000 (Entered: 09/06/2000)
19 MOTION filed by federal defendant RICHARD J. DANZIG, federal defendant NORBERT R. RYAN, federal defendant BYRON HOLDERBY JR., federal defendant DEPARTMENT OF NAVY, federal defendant BARRY BLACK to dismiss amended complaint [18−1] (tb) Modified on 09/26/2000 (Entered: 09/26/2000)
22 RESPONSE by plaintiff in opposition to motion to dismiss amended complaint [18−1] [19−1] by BARRY BLACK, DEPARTMENT OF NAVY, BYRON HOLDERBY JR., NORBERT R. RYAN, RICHARD J. DANZIG . (bm) (Entered: 09/27/2000)
20 ORDER by Judge June L. Green : that the parties' memoranda filed in support of and in opposition to defendant's motion to dismiss the original complaint in this case are hereby incorporated as the memoranda of points and authorities in support of and in opposition to defendant's motion to dismiss plaintiff's first amended complaint. (N) (ks) (Entered: 09/27/2000)
21 ORDER by Judge June L. Green : granting joint motion to consolidate cases CA 99−2945, for the limited purposes of consideration and determiniation of preliminary motions; and that should the court deny in whole or in part the consolidated defendant's motion to dismiss, then these cases shall also be consolidated for case management and discovery purposes. (N) (ks) (Entered: 09/27/2000)
ENTERED IN ERROR. . . .Case consolidated with 99cv2495 pursuant to order filed 9/26/00. All documents shall be filed in lead case number 99cv−2495. (td, ) Modified on 11/20/2003 (td, ). (Entered: 11/20/2003)
Case consolidated with 99cv2945 pursuant to order filed 9/26/00. All filings shall be filed in lead case number 99cv2945. (td, ) (Entered: 11/20/2003)
23 MOTION filed by plaintiff ROBERT H. ADAIR to allow a chaplain plaintiff to use a pseudonym in order to pursue this litigation without subjecting his naval career to harassment, retaliation, and further prejudice from the defendants ; exhibits (3) (cdw) Modified on 10/24/2000 (Entered: 10/23/2000)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 8 of 32

11/03/2000 11/08/2000 11/13/2000
11/20/2000 11/27/2000 11/27/2000
12/07/2000 12/19/2000 01/10/2001 03/21/2001 03/21/2001 03/21/2001 03/21/2001 03/29/2001

24 MOTION (UNOPPOSED) filed by federal defendant RICHARD J. DANZIG, federal defendant NORBERT R. RYAN, federal defendant BYRON HOLDERBY JR., federal defendant DEPARTMENT OF NAVY, federal defendant BARRY BLACK to extend time to 11/13/00 to serve and file a response to plaintiff's motion to allow a chaplain plaintiff to use a pseudonym (cdw) (Entered: 11/06/2000)
25 ORDER by Judge June L. Green : granting motion to extend time to 11/13/00 to file a response to plaintiff's motion to allow a chaplain plaintiff to use a pseudonym [24−1] by BARRY BLACK, DEPARTMENT OF NAVY, BYRON HOLDERBY JR., NORBERT R. RYAN, RICHARD J. DANZIG (N) (ks) (Entered: 11/08/2000)
26 MEMORANDUM by federal defendant RICHARD J. DANZIG, federal defendant NORBERT R. RYAN, federal defendant BYRON HOLDERBY JR., federal defendant DEPARTMENT OF NAVY, federal defendant BARRY BLACK in opposition to motion to allow a chaplain plaintiff to use a pseudonym in order to pursue this litigation without subjecting his naval career to harassment, retaliation, and further prejudice from the defendants [23−1] by ROBERT H. ADAIR (cdw) (Entered: 11/14/2000)
27 MOTION filed by plaintiffs to extend time to 11/30/00 to file a reply to their motion to allow a Chaplain plaintiff to use a Pseudonym. (ks) (Entered: 11/21/2000)
28 ORDER by Judge June L. Green : granting motion to extend time to 11/2730/00 to file a reply to their motion to allow a Chaplain plaintiff to use a Pseudonym. [27−1] by ROBERT H. ADAIR (N) (clv) (Entered: 11/27/2000)
29 REPLY by plaintiff ROBERT H. ADAIR, plaintiff MICHAEL BELT, plaintiff GREGORY R. DE MARCO, plaintiff FURNISS HARKNESS, plaintiff MICHAEL LAVELLE, plaintiff GEORGE W. LINZEY, plaintiff TIMOTHY D. NALL, plaintiff THOMAS RUSH, plaintiff JAMES M. WEIBLING, plaintiff JOHNS ADAMS, plaintiff JOHN WITHERSPOON to response in opposition to motion to allow a chaplain plaintiff to use a pseudonym in order to pursue this litigation without subjecting his naval career to harassment, retaliation, and further prejudice from the defendants [23−1] by ROBERT H. ADAIR (cdw) (Entered: 11/28/2000)
30 ORDER by Judge June L. Green : granting plaintiff's motion to have proposed exhibit numbers 24−33 added to plaintiff's opposition to the Navy's motion to dismiss; and after receiving this Order, plaintiffs shall file a similar set with the Court to supplement plaintiff's joint motion. (N) (ks) (Entered: 12/07/2000)
31 ORDER by Judge June L. Green : granting motion to add an additional plaintiff of Lieutenant Commander Robert Duane Purser in case of CHAPLAINCY OF FULL GOSPEL CHURCHES v. DANZIG. (N) (ks) (Entered: 12/19/2000)
CASE REASSIGNED from Judge June L. Green to Judge Ricardo M. Urbina (ks) (Entered: 01/11/2001)
32 RETURN OF SERVICE/AFFIDAVIT (COPY) of summons and complaint executed on 3/28/00 upon federal defendant RICHARD J. DANZIG, federal defendant BYRON HOLDERBY JR., federal defendant DEPARTMENT OF NAVY (tb) Modified on 03/22/2001 (Entered: 03/22/2001)
33 RETURN OF SERVICE/AFFIDAVIT (COPY) of summons and complaint executed on 4/1/00 upon federal defendant NORBERT R. RYAN (tb) (Entered: 03/22/2001)
34 RETURN OF SERVICE/AFFIDAVIT (COPY) of summons and complaint executed upon U.S. Attorney General on 3/27/00 (tb) Modified on 03/22/2001 (Entered: 03/22/2001)
35 RETURN OF SERVICE/AFFIDAVIT (COPY) of summons and complaint executed upon U.S. Attorney on 3/27/00 (tb) Modified on 03/22/2001 (Entered: 03/22/2001)
36 ORDER by Judge Ricardo M. Urbina : denying without prejudice motion to allow a chaplain plaintiff to use a pseudonym in order to pursue this litigation without

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 9 of 32

05/03/2001 05/15/2001 09/28/2001
01/10/2002 01/10/2002
02/01/2002

subjecting his naval career to harassment, retaliation, and further prejudice from the defendants [23−1] by ROBERT H. ADAIR, denying without prejudice motion to dismiss amended complaint [18−1] [19−1] by BARRY BLACK, DEPARTMENT OF NAVY, BYRON HOLDERBY JR., NORBERT R. RYAN, RICHARD J. DANZIG, denying without prejudice motion for partial summary judgment [11−1] by plaintiffs, denying without prejudice motion to hold in abeyance proceedings on plaintiffs' joint motion partial summary judgment [8−1] by DEPARTMENT OF NAVY, BYRON HOLDERBY JR., NORBERT R. RYAN, RICHARD J. DANZIG, denying without prejudice motion for partial summary judgment [7−1] by plaintiffs, denying without prejudice motion to dismiss complaint [1−1] [5−1] by DEPARTMENT OF NAVY, BYRON HOLDERBY JR., NORBERT R. RYAN, RICHARD J. DANZIG the court will schedule a status hearing, at which the court will issue a and procedure order setting dates for submissions and proceedings in this matter; following the hearing the parties will be permitted to re−file their motions. (N) (jwd) Modified on 03/29/2001 (Entered: 03/29/2001)
37 ORDER by Judge Ricardo M. Urbina :reinstating defendants' motion to dismiss [Document No.5]; plaintiffs motion for partial summary judgment [Document No.7]; defendants' motion to hold in abeyance [Document No.8]; plaintiffs' motion for partial summary judgment [Document No. 11]; ddefendants' motion to dismiss the amended omplaint [Document No. 19] and plaintiffs' motion to use a pseudonym [Document No. 23]. (N) (jwd) (Entered: 05/03/2001)
38 ORDER by Judge Ricardo M. Urbina : granting defendants' unopposed renewed motion to file a response to plaintiffs' memorandum accompany ing the filing of addition evidence in opposition to defendants' motion to dismiss and in support of plaintiffs' motion for partial summary judgment; defendants' response to plaintiffs' memorandum accompanying the filing of additional evidence in opposition to defendants' motion to dismiss and in support of plaintiffs' motion for partial summary judgment submitted 1/19/01, is hereby accepted and deemed filed in these consolidated cases. (N) (jwd) Modified on 10/01/2001 (Entered: 05/15/2001)
39 ORDER by Judge Ricardo M. Urbina : denying without prejudice motion to allow a chaplain plaintiff to use a pseudonym in order to pursue this litigation without subjecting his naval career to harassment, retaliation, and further prejudice from the defendants [23−1] by ROBERT H. ADAIR, granting in part, denying in part motion to dismiss amended complaint [18−1] [19−1], denying without prejudice motion for partial summary judgment [11−1] by plaintiffs, denying as moot motion to hold in abeyance proceedings on plaintiffs' joint motion for partial summary judgment [8−1] by DEPARTMENT OF NAVY, BYRON HOLDERBY JR., NORBERT R. RYAN, RICHARD J. DANZIG, denying motion for partial summary judgment [7−1] by plaintiffss, granting in part, denying in part motion to dismiss complaint [1−1] [5−1] (N) (jwd) (Entered: 10/01/2001)
40 MEMORANDUM OPINION by Judge Ricardo M. Urbina (N) (jwd) (Entered: 01/10/2002)
41 ORDER by Judge Ricardo M. Urbina : denying defendants' motion to dismiss the plaintiff's claims involving the hiring and retention of chaplians; denying in part and granting in part defendants' motion to dismiss the plaintiffs' claim relating to Navy's promotion of chaplains; denying defendants' motion to dismiss the plaintiffs' claim involving the Navy's alleged implementation of a liturgical Protestant "general service"; denying defendants' motion to dismiss the plaintiffs' cliams relating to the plaintiffs' religious speech and the freeexercise of their religion; denying defendants' motion to dismiss the plaintiffs' claim for constructive discharged; parties shall further brief several of the plaintiffs' claims that the briefs do not sufficiently address; denying as moot the defendants' motion to hold the proceedings in abeyance until the court resolves the motion to dismiss; denying without prejudice plaintiffs' motion for partial summary judgment; denying without prejudice plaintiffs' motion to allow a chaplain plainitiff to use a pseudonym. (N) (jwd) Modified on 02/06/2002 (Entered: 01/10/2002)
42 ORDER by Judge Ricardo M. Urbina : denying plaintiffs' motion for preliminary injunction (the original order is filed in 99cv2945) (N) (adc) (Entered: 02/01/2002)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 10 of 32

02/07/2002 02/07/2002
02/07/2002 02/08/2002 03/26/2002 03/28/2002 03/29/2002 03/29/2002 04/15/2002 05/02/2002 05/13/2002

STATUS HEARING before Judge Ricardo M. Urbina: plaintiff given until 2/18/02, to submit phase#2 discovery; Court granted plaintiff permissionto add additional 17 or 18 plaintiffs; defendant given until 2/28/02 to file an opposition to plaintiffs' motion for reconsideration; reply due by 3/11/02; (see scheduling order entry for other scheduled events) Reporter: William D. McAllister (jwd) (Entered: 02/07/2002)
43 ORDER by Judge Ricardo M. Urbina : directing that plaintiff shall have up to and including 2/11/02, to file and serve one, unified plaintiffs' motion for partial summary judgment; memorandum shall not exceed 60 pages; defendants shall have until 3/28/02 to file and serve an opposition and any cross−motion thereto; memorandum in oppositon shall not exceed 60 pages; plaintiff shal have until 5/13/02, to file and serve a memorandum in reply on their motion for partial summary judgment and in response to any corss−motion for partial summary judgment; defendant shall have until 6/12/02, to file and serve a reply memorandum in support of their cross−motion for partial summary judgment, if they file such a motion; plaintiffs shall have up to and including 3/28/02, to file and serve thier motion for class certification in this action; defendant shall have up to and including 5/13/02, to file and serve their memeorandum in opposition to plaintiffs' motion for class certification; plaintiffs shall have up to and including 6/12/02, to file and serve their reply memorandum in support of thier motion for class certification; defendant shall have up to and including 2/15/02, to file and serve their supplemental motion to dismiss, if they choose to fle such a motion, pursuant to Court's Order of 1/10/02; memorandum shall not exceed 10 pages; plaintiff shall have up to and including 3/18/02, to file and serve their memorandum in opposition to the supplemental motion to dismiss; memorandum shall not exceed 10 pages; defendant shall have up to and including 4/2/02, to file and serve their reply memorandum in support of the supplemental motion to dismiss; reply memorandum shall not exceed 7 pages (N) (jwd) (Entered: 02/07/2002)
44 STANDING ORDER by Judge Ricardo M. Urbina: issued (N) (jwd) (Entered: 02/07/2002)
45 ORDER by Judge Ricardo M. Urbina: directing that defendants' opposition to the plaintiffs' motion for reconsideration of the court's dismissal of the plaintiffs' claims that having chaplain members of chaplain promotion board and having chaplains rate other chaplains violates the Constitution shall bedue 2/28/02, and the plaintiffs' reply, if any, shall be due 3/11/02. (N) (jwd) (Entered: 02/08/2002)
46 MOTION filed by plaintiff to certify the class ; attachments (8) (td) (Entered: 03/27/2002)
82 CROSS MOTIONS by federal defendant RICHARD J. DANZIG, federal defendant NORBERT R. RYAN, federal defendant BYRON HOLDERBY JR., federal defendant DEPARTMENT OF NAVY, federal defendant BARRY BLACK for partial summary judgment ; exhibits (10) (td) (Entered: 01/09/2003)
47 MEMORANDUM OPINION by Judge Ricardo M. Urbina denying without prejudice the plaintiffs' motion for apreliminary injunction to restore the status quo. (N) (jwd) (Entered: 04/02/2002)
48 ORDER by Judge Ricardo M. Urbina: denying without prejudice plaintiffs' motion for a preliminary in junction to restore the status quo (N) (jwd) (Entered: 04/02/2002)
49 FIRST SUPPLEMENT by plaintiffs to the first amended complaint [18−1] by plaintiffs; attachments (7) (bm) (Entered: 04/17/2002)
50 ORDER by Judge Ricardo M. Urbina : granting defendants' consent motion to extend time to 5/28/02, to file an answer to plaintiffs' first supplement to the Second Amended Complaint. (N) (jwd) (Entered: 05/02/2002)
51 RESPONSE by federal defendants RICHARD J. DANZIG, NORBERT R. RYAN, BYRON HOLDERBY JR., DEPARTMENT OF NAVY, and BARRY BLACK in opposition to motion to certify the class [46−1] by plaintiffs; attachments (2). (bm) (Entered: 05/14/2002)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 11 of 32

06/05/2002 06/10/2002 06/25/2002 07/03/2002
07/08/2002 07/11/2002 07/12/2002 07/22/2002
07/22/2002 07/22/2002
07/22/2002 07/22/2002
07/22/2002
07/22/2002
07/26/2002 07/31/2002 08/19/2002

52 MOTION filed by plaintiffs to add additional plaintiffs ; attachments (2) (bm) (Entered: 06/07/2002)
53 REPLY by plaintiff ROBERT H. ADAIR to response in opposition to motion to certify the class [46−1] by plaintiffs; exhibits (1) (aet) (Entered: 06/14/2002)
54 SECOND MOTION filed by plaintiffs to add additional plaintiffs (bm) (Entered: 06/26/2002)
66 MEMORANDUM by federal defendant RICHARD J. DANZIG, federal defendant NORBERT R. RYAN, federal defendant BYRON HOLDERBY JR., federal defendant DEPARTMENT OF NAVY in opposition to motion to add additional plaintiffs [52−1] by plaintiffs (aet) (Entered: 08/01/2002)
55 MOTION filed by federal defendants to extend time to 7/12/02 to respond to plaintiff's second motion to add additional plaintiffs (mpt) Modified on 07/09/2002 (Entered: 07/09/2002)
56 MOTION filed by plaintiffs to extend time to 7/26/02 within which to file a reply to their first and second motions to add additional plaintiffs (bm) (Entered: 07/12/2002)
57 MEMORANDUM by federal defendants in opposition to motion to add additional plaintiffs [54−1] by plaintiffs (bcs) (Entered: 07/16/2002)
58 ORDER by Judge Ricardo M. Urbina : granting motion to extend time to 7/12/02 to respond to plaintiff's second motion to add additional plaintiffs [55−1] by BARRY BLACK, DEPARTMENT OF NAVY, BYRON HOLDERBY JR., NORBERT R. RYAN, RICHARD J. DANZIG (N) (bm) (Entered: 07/22/2002)
59 ORDER by Judge Ricardo M. Urbina : granting motion to extend time to 7/26/02 within which to file a reply to first and second motions to add additional plaintiffs [56−1] by plaintiffs (N) (bm) (Entered: 07/22/2002)
60 ORDER by Judge Ricardo M. Urbina: directing by 7/29/02, each party shall provide the Court with no more than a two−page notice telling the Court which exhibits (including specific page or paragraph numbers) the parties view as most important to the Court's resolution of the cross−motions for partial summary judgment; there shall be no extensions of time. (N) (bm) (Entered: 07/22/2002)
61 ORDER by Judge Ricardo M. Urbina: granting defendants' motion to strike the plaintiffs' motion for partial summary judgment filed 12/20/01 in CA 99−2945. (N) (bm) (Entered: 07/22/2002)
62 ORDER by Judge Ricardo M. Urbina: granting defendants' motion nunc pro tunc extending time to 3/29/02 2:15 a.m. for defendants to serve and file the cross−motion for partial summary judgment and opposition to plaintiffs' motion for partial summary judgment (N) (bm) (Entered: 07/22/2002)
63 ORDER by Judge Ricardo M. Urbina: granting defendants' motion nunc pro tunc extending 7/3/02 to file and serve a response to plaintiffs' first motion to add additional plaintiffs; counse are reminded that all motions for extensions of time shall be filed four business days in advance of the due date. (N) (bm) (Entered: 07/22/2002)
64 ORDER by Judge Ricardo M. Urbina: directing defendants shall have 30 days from the date on which the Court rules on plaintiffs' motion for partial summary judgment filed 2/11/02, and any cross−motion thereto, to file and serve an asnwer to the amended complaint in these cases. (N) (bm) (Entered: 07/22/2002)
65 REPLY by plaintiffs to response in opposition to motion to add additional plaintiffs [54−1] by plaintiffs, motion to add additional plaintiffs [52−1] by plaintiffs (bm) (Entered: 07/29/2002)
67 MEMORANDUM OPINION by Judge Ricardo M. Urbina (N) (jwd) (Entered: 08/01/2002)
68 MEMORANDUM OPINION by Judge Ricardo M. Urbina granging plaintiffs' motion for class certification. (N) (jwd) (Entered: 08/19/2002)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 12 of 32

08/19/2002 08/27/2002 08/27/2002 08/27/2002
09/19/2002 09/20/2002 10/18/2002 10/29/2002 11/01/2002 11/05/2002
11/08/2002
11/08/2002 11/19/2002 06/08/2003

69 ORDER by Judge Ricardo M. Urbina : granting motion to certify the class [46−1] by plaintiffs; the court will define the specific class of plaintiffs after the parties each submit a brief not to exceed five pages double−spaced by 9/20/02. (N) (jwd) (Entered: 08/19/2002)
70 MEMORANDUM OPINION by Judge Ricardo M. Urbina denying without prejudice the plaintiffs' motion for partial summary judgment; denying without prejudcie the defendants' motin for partial summary judgment (N) (jwd) (Entered: 08/27/2002)
71 ORDER by Judge Ricardo M. Urbina: denying without prejudice the plaintiffs' motion for partial summary judgment; denying without prejudice the defendants' motion for partial summary judgment; denying without prejudice the planitiffs' Rule 56 motion to strike declarations (N) (jwd) (Entered: 08/27/2002)
72 ORDER by Judge Ricardo M. Urbina: directing that this case will now proceed to discovery; further directing parties to submit a status report to the curt by 10/1/02; the status report should include a joint proposal for how discovery should proceed, the paties' views on whether cases should now be consolidatedfor all purposes, and any other issues that the parties would like the court to address. (N) (jwd) (Entered: 08/27/2002)
74 RESPONSE by plaintiffs concerning effect of Judge Green's 8/17/00 memorandum opinion on the size of class (bm) (Entered: 09/25/2002)
73 RESPONSE by federal defendants RICHARD J. DANZIG, NORBERT R. RYAN, BYRON HOLDERBY JR., DEPARTMENT OF NAVY, BARRY BLACK to order granting plaintiffs' motion for class certification. [69−1] (bm) (Entered: 09/23/2002)
75 MOTION filed by plaintiff to amend first amended complaint [18−1] by plaintiffs ; exhibits (10) (NO PENDING EXHIBIT) (aet) Modified on 10/28/2002 (Entered: 10/21/2002)
76 MOTION filed by federal defendants to extend time to 11/8/02 to file an opposition to plaintiffs' motion to amend the complaint (bm) (Entered: 11/01/2002)
77 ORDER by Judge Ricardo M. Urbina : granting motion to extend time to 11/8/02 to file an opposition to plaintiffs' motion to amend the complaint [76−1] by BARRY BLACK, DEPARTMENT OF NAVY, BYRON HOLDERBY JR., NORBERT R. RYAN, RICHARD J. DANZIG (N) (jwd) (Entered: 11/04/2002)
78 MOTION (Consent) filed by federal defendants to extend time to 11/22/02 to file an opposition to plaintiffs motion for an order requiring defendant Secretary of the Navy to release personnel associated with Chaplain promotion boards from their oath not to disclose promotion board processings (RELATED TO MOTION #125 IN C.A. 99−9245 CHAPLINCY V. ENGLAND) (rje) Modified on 08/22/2003 (Entered: 11/06/2002)
79 ORDER by Judge Ricardo M. Urbina : granting motion to extend time to 11/22/02 to file an opposition to plaintiffs motion for an order requiring defendant Secretary of the Navy to release personnel associated with Chaplain promotion boards from their oath not to disclose promotion board processings [78−1] by BARRY BLACK, DEPARTMENT OF NAVY, BYRON HOLDERBY JR., NORBERT R. RYAN, RICHARD J. DANZIG (RELATED TO MOTION #125 IN IN C.A. 99−2945 CHAPLINCY V. ENGLAND) (N) (jwd) Modified on 08/22/2003 (Entered: 11/08/2002)
80 MEMORANDUM by federal defendant in opposition to motion to amend first amended complaint [18−1] by plaintiffs [75−1] by ROBERT H. ADAIR; exhibits (5) (aet) (Entered: 11/12/2002)
81 REPLY by plaintiff in support of motion to amend first amended complaint [18−1] by plaintiffs [75−1] by ROBERT H. ADAIR (aet) (Entered: 11/20/2002)
83 (COPY) NOTICE by plaintiff ROBERT H. ADAIR of clarification on 6/5/03 certificate of service (bm) (Entered: 06/11/2003)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 13 of 32

07/16/2003 07/16/2003
07/23/2003 07/30/2003 08/01/2003 08/04/2003
08/18/2003
08/18/2003 08/18/2003 09/02/2003 09/02/2003

84 MEMORANDUM OPINION by Judge Ricardo M. Urbina (N) (bm) (Entered: 07/16/2003)
85 ORDER by Judge Ricardo M. Urbina : granting motion to amend first amended complaint [18−1] by plaintiffs [75−1] ROBERT H. ADAIR; directing the plaintiffs to fie a second amended complaint by 7/23/03; denying without prejudice all pending motions pertaining to the first amended complaint [52−1] [54−1] by plaintiffs; by 8/18/03, in light of the amendments made by the second amended complaint and in keeping with this Court's previousl memorandum opinion each party submit a brief, not to exceed seven pages double−spaced, setting forth the party's views on (1) the definition of the class, (2) the naming of class representative, (3) the manner by which notice should be given to class members, (4) the ability of class members to opt out of the class and (5) the need, if any, to add additional plaintiffs. (N) (bm) (Entered: 07/16/2003)
86 AMENDED COMPLAINT by plaintiff adding , and amending complaint [1−1] . ; exhibits (6) (bjsp) (Entered: 07/24/2003)
87 MOTION filed by federal defendants to extend time to 9/12/03 to answer second amended complaint [86−1] (bjsp) (Entered: 08/01/2003)
88 ORDER (COPY) by Judge Ricardo M. Urbina : granting motion to extend time to 9/12/03 to answer second amended complaint [86−1] [87−1] by NORBERT R. RYAN ; Answer extended to 9/12/03 for BARRY BLACK, for DEPARTMENT OF NAVY, for BYRON HOLDERBY JR., for NORBERT R. RYAN, for RICHARD J. DANZIG (N) (jwd) (Entered: 08/01/2003)
89 MEMORANDUM ORDER (COPY) by Judge Ricardo M. Urbina: denying without prejudice plaintiffs' motion [#139] for declaratory or partial summary judgment; granting nunc pro tunc defenants' motion [#140] to extend time to file an opposition or otherwile respond to plaintiffs' motion for declaratory or partial summary judgment; denying defendants' motion [#144] to hold in abeyance the plaintiffs' motion for declaratory or partial summary judgment or, in the alternative, for discovery.[The above three motions were filed in C.A.99/2945, the related case.] (N) (jwd) (Entered: 08/04/2003)
90 ORDER by Judge Ricardo M. Urbina : directing that the Adair plaintiffshall have until 9/15/03 to file a third amended complaint consisting of their second amended complaint as modified to incorporate the allegations contained in their first supplement to the first amended complaint; Adair defendants shall have until10/15/03 to file an answer to the third amended complaint; Chaplaincy plaintiff shall have until 9/15/03 to file third amended complaint consisting of their second amended complaint as modified to incorporate the allegations contained in their first supplement to the second amended complaint; Chaplaincy defendants shall have until 10/15/03 to file an answer to the third amended complaint. (N) (jwd) (Entered: 08/18/2003)
91 RESPONSE by plaintiff to court's 7/16/03 order on class definition and other issues [85−1]; exhibits (3) (bcs) (Entered: 08/19/2003)
92 RESPONSE by federal defendants to court's 7/16/03 order on class certification [85−1]; exhibit (1) (bcs) (Entered: 08/19/2003)
98 MEMORANDUM AND OPINION granting the plaintiff's motion to compel; denying other pending discovery motions and directing the parties to submit a revised joint status report. Signed by Judge Ricardo M. Urbina on 9/2/03. (td, ) (Entered: 11/21/2003)
99 ORDER denying without prejudice motion for oder under Fed. R. Civ. P. 26(b)(2) altering the presumptive limits for the number of depositions and interrogatories in rules 30(a)(2)(A) and 33(a) (129−1 in 99cv2945) by Chaplain/Full Gospel denying as moot notice (135−1 in 99cv2945) by plaintiffs denying as moot motion to vacate existing discovery dates (150−1 in 99cv2945)by plaintiffs, denying without prejudice motion for order referring discovery motions and issues to a Magistrate Judge (137−1 in 99cv2945) by plaintiffs, denying as moot motion for leave to file a supplemental pleading (136−1 in 99cv2945) by plaintiffs, denying without prejudice motion for order referring discovery motions and issues to Magistrate Judge (134−1 in 99cv2945) by plaintiffs, granting motion for order rquiring

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 14 of 32

09/15/2003 10/15/2003 10/30/2003
10/30/2003 11/06/2003
11/13/2003
11/20/2003 11/21/2003
11/21/2003 11/25/2003 12/05/2003

defendant Secretary of the Navy to release personnel associated with Chaplain Promotion Board from their oath not to disclose promotion board proceedings (125−1 in 99cv2945) by Chaplain/Full Gospel; directing that by 10/31/03, the parties submit a revised joint status report, not to exceed 12 pages, tha proposes (1) a plan of discovery allowing the plaintiffs to conduct limited discovery of selection−board personnel in a manner that is focus and tha minimizes the possibility of harm to selection−board process, and (2) an amended discovery schedule that takes into account the parties' progress to date and the current posture of the case. The court expects the parties to stipulate to reasonable alterations to the deopsition and tnterrogatory limitations and to resolve any outstanding issues regarding expert disclosure; that the parties take note that to keep this case on track, the court expect a maximum of cooperation and a mimimum of ilings from the parties, and toward the end will hence forth strictly enforce its Standing Order and the Federl and Local Discovery Rules, imposing sancitions when warranted. Signed by Judge Ricardo M. Urbina on 9/2/03. (td, ) (Entered: 11/21/2003)
93 AMENDED COMPLAINT by plaintiff adding federal defendant LOUIS V. IASIELLO, CHIEF OF CHAPLAINS, GERALD L. HOEWING, and amending complaint [1−1] .; exhibits (12) (bjsp) (Entered: 09/17/2003)
94 ANSWER TO AMENDED THIRD COMPLAINT [93−1] by federal defendants (bm) (Entered: 10/16/2003)
95 ENTERED IN ERROR. . . .NOTICE by BARRY BLACK, RICHARD J. DANZIG, DEPARTMENT OF NAVY, GERALD L. HOEWING, BYRON HOLDERBY JR., LOUIS V. IASIELLO, NORBERT R. RYAN, THE DEPUTY CHIEF OF CHAPLAINS of Appeal by All Defendants (Hyde, Michael) Modified on 11/20/2003 (td, ). (Entered: 10/30/2003)
100 NOTICE OF APPEAL as to 98 Memorandum &Opinion, 99 Order, by DEPARTMENT OF NAVY, GERALD L. HOEWING, BYRON HOLDERBY JR., LOUIS V. IASIELLO, THE DEPUTY CHIEF OF CHAPLAINS. (td, ) (Entered: 11/21/2003)
96 Consent MOTION to Stay Pending Appeal of the Court's September 2, 2003 Memorandum Opinion and Order by all Defendants by BARRY BLACK, RICHARD J. DANZIG, DEPARTMENT OF NAVY, GERALD L. HOEWING, BYRON HOLDERBY JR., LOUIS V. IASIELLO, NORBERT R. RYAN, THE DEPUTY CHIEF OF CHAPLAINS. (Hyde, Michael) (Entered: 11/06/2003)
MINUTE ORDER granting 96 Consent Motion to Stay Memorandum Opinion and Order dated Sept. 2, 2003 Pending Appeal. By no later than January 15, 2003, the parties shall file a joint status report, not to exceed 3 pages, that indicates the status of the appeal and the parties' overall progress on other discovery matters. Signed by Judge Ricardo M. Urbina on 11/13/03. (Entered: 11/13/2003)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 173 Notice of Appeal (td, ) (Entered: 11/20/2003)
97 MOTION for Entry of Final Judgment under Fed.R.Civ.P 54(b) by MARTHA CARSON, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARK R. JOHNSTON, KLON K. KITCHEN JR., DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING, BARBY EARL Y. (Attachments: # 1 Supplement Memorandum in Support# 2 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Schulcz, Arthur) (Entered: 11/21/2003)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 100 Notice of Appeal (td, ) (Entered: 11/21/2003)
101 USCA Case Number 03−5334 for 100 Notice of Appeal filed by DEPARTMENT OF NAVY, BYRON HOLDERBY, LOUIS V. IASIELLO, THE DEPUTY CHIEF OF CHAPLAINS, GERALD L. HOEWING. (cp, ) (Entered: 12/03/2003)
102 Memorandum in opposition to motion re 174 Certification of a Final Judgment under Federal Rule of Civil Procedure 54(b) filed by DEPARTMENT OF NAVY,

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 15 of 32

12/12/2003
01/14/2004
05/06/2004 05/06/2004 10/18/2004
10/18/2004
12/02/2004 12/02/2004 12/02/2004 02/01/2005
02/04/2005
02/07/2005

GERALD L. HOWEING, HANSFORD T. JOHNSON. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Hyde, Michael) (Entered: 12/05/2003)
103 REPLY in support of motion re 174 filed by MARTHA CARSON, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARK R. JOHNSTON, KLON K. KITCHEN JR., DANIEL E. ROYSDEN, MARY HELEN SPALDING, BARBY EARL Y. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Schulcz, Arthur) (Entered: 12/12/2003)
104 STATUS REPORT in Accord With 11/13/03 Order by MARTHA CARSON, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARK R. JOHNSTON, KLON K. KITCHEN JR., DENISE Y. MERRITT, ROBERT DUANE PURSER, DANIEL E. ROYSDEN, MARY HELEN SPALDING, BARBY EARL Y. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Schulcz, Arthur) (Entered: 01/14/2004)
105 MEMORANDUM OPINION denying 97 Motion for Entry of Final Judgment. Signed by Judge Ricardo M. Urbina on 5/6/04. (Entered: 05/06/2004)
106 ORDER denying 97 Motion for Entry of Final Judgment. Signed by Judge Ricardo M. Urbina on 5/6/04. Modified on 5/6/2004 (AD, ). (Entered: 05/06/2004)
107 USCA JUDGMENT (certified copy) as to 100 Notice of Appeal filed by DEPARTMENT OF NAVY, BYRON HOLDERBY, LOUIS V. IASIELLO, THE DEPUTY CHIEF OF CHAPLAINS, GERALD L. HOEWING; It is hereby ordered and adjudged that the judgment of the District Court appealed from in these causes is hereby reversed in part and vacated in part and the cases are remanded for further proceedings; USCA#03−5329 (jsc) (Entered: 10/21/2004)
108 USCA JUDGMENT (certified copy) as to 173 Notice of Appeal filed by DEPARTMENT OF NAVY, HANSFORD T. JOHNSON, GERALD L. HOWEING;It is hereby ordered and adjudged that the judgment of the District Court appealed from in these causes is hereby reversed in part and vacated in part and the cases are remanded for further proceedings; USCA#03−5329 (jsc) (jsc) (Entered: 10/21/2004)
MINUTE ORDER. The parties shall submit a joint status report regarding how these cases are to proceed by no later than 2/1/05. The parties may consolidate this report with the report requested for Larsen v. Navy if the parties so desire. Signed by Judge Ricardo M. Urbina on 12/2/04. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jp, ) (Entered: 12/02/2004)
Set Deadlines/Hearings: Status Report due by 2/1/2005. (jwd) (Entered: 12/02/2004)
Set Deadlines/Hearings: Status Report due by 2/1/2005. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jwd) (Entered: 12/02/2004)
109 STATUS REPORT by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, DEPARTMENT OF NAVY, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Schulcz, Arthur) (Entered: 02/01/2005)
110 MOTION for Order by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Schulcz, Arthur) (Entered: 02/04/2005)
111 ORDER denying 142 Motion for Preliminary Injunction, denying 142 Motion for Partial Summary Judgment . Signed by Judge Ricardo M. Urbina on 2/7/05. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jp, ) (Entered: 02/07/2005)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 16 of 32

02/07/2005 03/06/2005 03/07/2005 04/01/2005
04/04/2005 04/04/2005
04/04/2005 04/04/2005 04/06/2005
04/07/2005 04/07/2005 04/11/2005 04/28/2005

112 MEMORANDUM OPINION. Signed by Judge Ricardo M. Urbina on 2/7/05. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jp, ) (Entered: 02/07/2005)
MINUTE ORDER. Status report due April 1, 2005 . Signed by Judge Ricardo M. Urbina on 3/6/05. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jp, ) (Entered: 03/06/2005)
Set Deadlines/Hearings: Status Report due by 4/1/2005. (jwd) (Entered: 03/07/2005)
113 STATUS REPORT by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, CHAPLAINCY OF FULL GOSPEL CHURCHES, DEPARTMENT OF NAVY, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(Schulcz, Arthur) (Entered: 04/01/2005)
MINUTE ORDER granting 183 Motion for Order. All discovery related disputes, issues and motions that arise in the above cases shall be referred to Judge Facciola. Signed by Judge Ricardo M. Urbina on 4/4/05. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jp, ) (Entered: 04/04/2005)
MINUTE ORDER. The briefing schedule is as follows: each party shall file a brief (no more than 45 pages) addressing whether the proceedings of active duty continuation and SER boards are protected from civil discovery on or before 5/27/05; the parties shall submit their replies (no more than 25 pages) thereto on or before 6/17/05. The parties are strongly urged to keep their filings concise. Signed by Judge Ricardo M. Urbina on 4/4/05. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jp, ) (Entered: 04/04/2005)
CASE REFERRED to Magistrate Judge John M. Facciola for All Discovery Disputes, Issues and Motions. Associated Cases: 1:99−cv−02945−RMU,1:00−cv−00566−RMU(jsc) (Entered: 04/05/2005)
CASE REFERRED to Magistrate Judge John M. Facciola for All Discovery Disputes, Issues and Motions. (jsc) (Entered: 04/05/2005)
116 NOTICE OF INTERLOCUTORY APPEAL as to Court's order entered on February 07, 2005 111 by JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING. Filing fee $ 255, receipt number 133422. (jf, ) . (Entered: 04/11/2005)
114 Notice to counsel regarding referral to Magistrate Judge John M. Facciola for discovery. Signed by Magistrate Judge John M. Facciola on 4/7/05. (SP, ) (Entered: 04/07/2005)
115 Notice to counsel regarding referral to Judge John M. Facciola for discovery. Signed by Magistrate Judge John M. Facciola on 4/7/05. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(SP, ) (Entered: 04/07/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 116 Notice of Interlocutory Appeal, (jf, ) (Entered: 04/11/2005)
USCA Case Number 05−5144 for 116 Notice of Interlocutory Appeal, filed by ROBERT H. ADAIR,, MICHAEL BELT,, GREGORY R. DE MARCO,, FURNISS HARKNESS,, MICHAEL LAVELLE,, GEORGE W. LINZEY,, TIMOTHY D. NALL,, THOMAS RUSH,, JAMES M. WEIBLING,, JOHN WITHERSPOON,, MICHAEL A. WRIGHT,, WILLIAM C. BLAIR,, LARRY FARRELL,, RAFAEL J. QUILES,, LYLE SWANSON,, RONALD TOMLIN,, DAVID S. WILDER,. (jf, ) (Entered: 04/29/2005)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 17 of 32

05/23/2005 05/24/2005 05/24/2005 06/17/2005
06/17/2005 07/22/2005 07/22/2005

117 Joint MOTION for Extension of Time to File Briefs by DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/23/2005)
MINUTE ORDER granting 189 Motion for Extension of Time. The deadline for the parties to file opening memoranda on whether the deliberations of the Navy Chaplain Corps selective early retirement and active−duty continuation boards are protected from civil discovery is Friday, June 17, 2005, and for reply memoranda is Friday, July 22, 2005. Signed by Judge Ricardo M. Urbina on 5/24/05. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(jp, ) (Entered: 05/24/2005)
Set Deadlines/Hearings: Parties are to file opening memoranda on whether the deliberation of the Navy Chaplain Corps selective early retirement and active−duty continuation boards are protected from civil disovery is due by Friday, 6/17/2005. Repy memoranda is due by Friday, 7/22/2005. Associated Cases:1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF. (jwd) (Entered: 05/24/2005)
118 MEMORANDUM by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit Ex 1, Statutes# 2 Exhibit Ex 2, Wilkins# 3 Exhibit Ex 3, SER Precept# 4 Exhibit Ex 4, Bd members 77−02# 5 Exhibit Ex 5, Board demographics# 6 Exhibit Ex 6, SER candidates# 7 Exhibit Ex 7, Rock deposition# 8 Exhibit Ex 8, SER bd mbrs# 9 Exhibit Ex 9, Expert Report# 10 Appendix Ex 9 Appendix A# 11 Appendix Ex 9 Appendix B# 12 Appendix Ex 9 Appendix C# 13 Appendix Text for Ex (9Appendix D# 14 Appendix Data for Ex 9 Appendix D# 15 Appendix Appendix E for Ex 9# 16 Exhibit Ex 10, NIG Interview# 17 Exhibit Ex 11, Declaration re exhibits# 18 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 06/17/2005)
119 SUPPLEMENTAL MEMORANDUM Regarding the Discoverability of Deliberations of Navy Chaplain Corps Active−Duty Selective Early Retirement Boards filed by HANSFORD T. JOHNSON, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Supplement Second Part of Memorandum# 2 Exhibit # 3 Exhibit # 4 # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 06/17/2005)
120 REPLY Memorandum Regarding the Discoverability of Deliberations of Navy Chaplain Corps Active−Duty Selective Early Retirement Boards filed by HANSFORD T. JOHNSON, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 07/22/2005)
121 REPLY to Defendants SER Memorandum filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit Ex 1,Expert Declaration# 2 Exhibit Ex 2, Expert Compendium# 3 Appendix Apx I to Ex 2# 4 Appendix Apx J to Ex 2# 5 Appendix Apx K to Ex 2# 6 Appendix Apx L1 to Ex 2# 7 Appendix Apx L2 to Ex 2# 8 Appendix Apx L3 to Ex 2# 9 Appendix Apx M to Ex 2# 10 Appendix Apx N to Ex 2# 11 Appendix Apx O to Ex 2# 12 Appendix Apx O2 to Ex 2# 13 Appendix Apx P to Ex 2# 14 Exhibit Exhibit 3# 15 Exhibit Exhibit 4# 16 Exhibit Exhibit 5)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 07/22/2005)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 18 of 32

08/12/2005 08/12/2005
08/15/2005 08/15/2005 10/07/2005 10/08/2005 10/08/2005 10/08/2005 10/08/2005 10/08/2005

122 Consent MOTION for Order Establishing Briefing Schedule by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 08/12/2005)
123 MOTION for Declaratory Judgment by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit !.a Kitchen Declaration# 2 Exhibit Ex.1b, Ellison Affid# 3 Exhibit Ex.2, Steewaart Decl# 4 Exhibit Ex.3, Bd. Misconduct# 5 Exhibit Ex.4, NIG Holderby# 6 Exhibit Ex.6, NIG Board Mbr# 7 Exhibit Ex6, Expert Compenduim# 8 Appendix Appendix M to Ex6# 9 Exhibit Ex.7, Delc Dr. Crick# 10 Exhibit Exhibit 8, Expert Suppliment# 11 Appendix Appe A to Ex 8# 12 Exhibit Additon to Ex.8# 13 Exhibit Ex.9 Decl re exhibits)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 08/12/2005)
MINUTE ORDER granting 122 Motion for order establishing briefing schedule. Defendants' opposition to plaintiffs' motion for declaratory judgment due October 7, 2005. Plaintiffs' reply due October 21, 2005. Signed by Judge Ricardo M. Urbina on 8/15/05. (djr) Modified on 8/24/2005 (djr). (Entered: 08/15/2005)
Set Deadlines/Hearings: Defendants' Oppositon to Plaintiffs' Motion for Declaratory Judgment due by 10/7/2005. Plaintiffs' Reply due by 10/21/2005. (jwd) Modified on 8/24/2005 (djr). (Entered: 08/15/2005)
124 Memorandum in opposition to motion re 195 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 10/07/2005)
125 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Proposed Order and Exhibits 1−5 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 # 5 Exhibit 5)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
126 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Proposed Order filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
127 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhjibit 6 Part 1 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
128 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 6 Part 2 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
129 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 7 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 19 of 32

10/08/2005 10/08/2005 10/08/2005 10/08/2005 10/08/2005 10/08/2005 10/08/2005
10/10/2005 10/10/2005
10/11/2005 10/11/2005

130 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 8 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
131 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 9 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
132 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 10 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
133 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 11 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
134 ENTERED IN ERROR.....Memorandum in opposition to motion re 195 Exhibit 12 filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 10/11/2005 (nmw, ). (Entered: 10/08/2005)
135 MOTION for Extension of Time to File and to Accept Filing of Exhibits and Proposed Order by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 10/08/2005)
137 NOTICE of Filing Exhibits and Proposed Order re 124 Memorandum in opposition to motion by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6 Part 1# 8 Exhibit 6 Part 2# 9 Exhibit 7# 10 Errata 8# 11 Exhibit 9# 12 Errata 10# 13 Exhibit 11# 14 Exhibit 12)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(nmw, ) Modified on 10/12/2005 (nmw, ). (Entered: 10/12/2005)
ORDER granting 135 Motion for Extension of Time to File. ORDERED that the motion is GRANTED and that the deadline for defendants to filetheir proposed order and exhibits in opposition to plaintiffs? Motion for Declaratory Judgment, Summary Judgment, and an Injunction shall be 12:30 am on October 8, 2005. Signed by Judge Ricardo M. Urbina on 10/10/05. (djr) (Entered: 10/10/2005)
ORDER granting 207 Motion for Extension of Time to File. ORDERED that the motion is GRANTED and that the deadline for defendants to filetheir proposed order and exhibits in opposition to plaintiffs? Motion for Declaratory Judgment, Summary Judgment, and an Injunction shall be 12:30 am on October 8, 2005. Signed by Judge Ricardo M. Urbina on 10/10/05. (djr) (Entered: 10/10/2005)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF (Entered: 10/10/2005)
NOTICE OF CORRECTED DOCKET ENTRY: Document Nos. 125−134 were entered in error and will be refiled as one entry. (nmw, ) (Entered: 10/11/2005)
136 MOTION for Extension of Time to File Response/Reply as to 196 Memorandum in Opposition by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 20 of 32

10/12/2005 10/12/2005 11/08/2005 02/24/2006
02/24/2006
02/24/2006 02/24/2006 02/24/2006 02/24/2006 02/27/2006

Order extending time to Reply)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 10/11/2005)
ORDER granting 208 Motion for Extension of Time to File Response/Reply. Reply due November 8, 2005. Signed by Judge Ricardo M. Urbina on 10/12/05. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 10/12/2005)
Set Deadlines/Hearings: Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion for Declaratory Judgment, Summary Judgment and an Injunction due by 11/8/2005. (jwd) (Entered: 10/12/2005)
138 REPLY to opposition to motion re 195 filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit Ex.A−Def In re England Opening Brief)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 11/08/2005)
139 MOTION for Temporary Restraining Order and Injunction by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING. (Attachments: # 1 Exhibit Exhibit A. Belt# 2 Exhibit Certificate# 3 Text of Proposed Order)(Schulcz, Arthur) (Entered: 02/24/2006)
140 MOTION for Entry of Declaratory Judgment by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Statement of Facts # 2 Appendix Memorandum Points and Auth# 3 Exhibit Statement re exhibits# 4 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 02/24/2006)
MINUTE ORDER directing the government to file its opposition to the plaintiffs' motion for a TRO no later than 2:00 pm on Monday February 27, 2006. The plaintiffs are hereby directed to file their reply on or before 9:00 am on Tuesday February 28, 2006. Signed by Judge Ricardo M. Urbina on 2/24/06. (djr) (Entered: 02/24/2006)
Set Deadlines/Hearings: Government of file its opposition to Plaintiffs' Motion for TRO no later than 2:00 p.m. 2/27/2006. Plaintiffs' Reply on or before 9:00 a.m. on 2/28/2006. (jwd) (Entered: 02/24/2006)
141 MOTION for Preliminary Injunction by JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING. (Please see Document No. 139 for scanned images). (nmw, ) (Entered: 02/27/2006)
142 MOTION (and/or) for Partial Summary Judgment by JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING. (Please see Document No. 140 for scanned images). (nmw, ) (Entered: 02/27/2006)
145 Memorandum in opposition to re 139 Motion for Temporary Restraining Order and Preliminary Injunction filed by BYRON HOLDERBY, JR, DEPARTMENT OF

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 21 of 32

02/28/2006
02/28/2006
02/28/2006 02/28/2006 03/02/2006 03/02/2006 03/02/2006
03/02/2006

NAVY, LOUIS V. IASIELLO, THE DEPUTY CHIEF OF CHAPLAINS, GERALD L. HOEWING. (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11)(nmw, ) (Entered: 02/28/2006)
143 REPLY to opposition to motion re 141 MOTION for Preliminary Injunction filed by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING. (Attachments: # 1 Exhibit Exhibit 1, Decl of Mike Belt# 2 Exhibit EXhibit 2, DEcl of Porter−Stewart# 3 Exhibit Exhibit 3, Decl of Mrs. Belt)(Schulcz, Arthur) (Entered: 02/28/2006)
144 ERRATA Reply Certificate of Service by JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING 141 MOTION for Preliminary Injunction filed by ROBERT H. ADAIR,, MICHAEL BELT,, GREGORY R. DE MARCO,, FURNISS HARKNESS,, MICHAEL LAVELLE,, GEORGE W. LINZEY,, TIMOTHY D. NALL,, THOMAS RUSH,, JAMES M. WEIBLING,, JOHN WITHERSPOON,, MICHAEL A. WRIGHT,, WILLIAM C. BLAIR,, LARRY FARRELL,, RAFAEL J. QUILES,, LYLE SWANSON,, RONALD TOMLIN,, DAVID S. WILDER,. (Schulcz, Arthur) (Entered: 02/28/2006)
146 ORDER denying 139 Motion for TRO. Signed by Judge Ricardo M. Urbina on 2/08/06. (djr) (Entered: 02/28/2006)
147 MEMORANDUM AND OPINION. Signed by Judge Ricardo M. Urbina on 2/28/06. (djr) (Entered: 02/28/2006)
148 Joint MOTION for Extension of Time to File Response/Reply and to Establish a Briefing Schedule by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 03/02/2006)
149 ERRATA Corrected Proposed Order for Joint Motion to Establish a Briefing Schedule by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 03/02/2006)
MINUTE ORDER granting 148 Motion for Extension of Time to File Response/Reply. April 14, 2006: Defendants will file their opposition to plaintiffs' Motion for Declaratory Judgment and/or Partial Summary Judgment and may also file dispositive motions. May 15, 2006: Plaintiffs will file their reply in support of their Motion for Declaratory Judgment and/or Partial Summary Judgment and anopposition to any dispositive motions filed by defendants. June 9, 2006: Defendants will file a reply in support of any dispositive motions filed by them. So Ordered. Signed by Judge Ricardo M. Urbina on 3/2/06. (djr) Modified on 3/2/2006 (jwd). (Entered: 03/02/2006)
Set Deadlines/Hearings: Defendant will file their Opposition to Plaintiffs' Motion for Declaratory Judgment and/or Partial Summary Judgment and may also file Dispositive Motions by 4/14/2006. Plaintiffs will file their Reply in support of their Motion for Declaratory Judgement and/or Partial Summary Judgment and an Opposition to any Dispositive Motion by 5/15/2006. Defendants will file a reply in support of any dispositive motions filed by them by 6/9/2006 (jwd) (Entered: 03/02/2006)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 22 of 32

03/03/2006 03/06/2006 03/08/2006 03/08/2006 03/16/2006 03/16/2006
03/16/2006 03/17/2006 04/05/2006 04/05/2006

150 NOTICE OF APPEAL as to 146 Order on Motion for TRO entered on 2/28/06 by JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING. Filing fee $ 255, receipt number 142905. (jf, ) (Entered: 03/06/2006)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 150 Notice of Appeal, (jf, ) (Entered: 03/06/2006)
151 ORDER allowing the discovery of the deliberations of active−duty selective early retirement selection boards. Signed by Magistrate Judge John M. Facciola on 3/7/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(lcjf1, ) (Entered: 03/08/2006)
152 MEMORANDUM OPINION re ORDER allowing discovery of the deliberations of selective early retirement selection boards. Signed by Magistrate Judge John M. Facciola on 3/7/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(lcjf1, ) (Entered: 03/08/2006)
153 Consent MOTION for Extension of Time to File Objections to Magistrate Judge's Order AND to Stay Such Order Pending Appeal by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 03/16/2006)
MINUTE ORDER granting 217 Motion for Extension of Time to File. The defendants' objections to and motion to reconsider Magistrate Judge Facciola's March 8, 2006 Opinion and Order is due Friday, April 21, 2006. It is FURTHER ORDERED that Magistrate Judge Facciola's March 8, 2006 Opinion and Order is STAYED pending resolution of defendants' objections to and appeal of the Opinion and Order. Signed by Judge Ricardo M. Urbina on 3/16/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 03/16/2006)
Set Deadlines/Hearings: Defendants' Objections to and motion to reconsider Magistrate Judge Facciola's March 8, 2006 Opinion and Order is due Friday, 4/21/2006. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(jwd, ) (Entered: 03/16/2006)
USCA Case Number 06−5074 for 150 Notice of Appeal, filed by ROBERT H. ADAIR,, MICHAEL BELT,, GREGORY R. DE MARCO,, FURNISS HARKNESS,, MICHAEL LAVELLE,, GEORGE W. LINZEY,, TIMOTHY D. NALL,, THOMAS RUSH,, JAMES M. WEIBLING,, JOHN WITHERSPOON,, MICHAEL A. WRIGHT,, WILLIAM C. BLAIR,, LARRY FARRELL,, RAFAEL J. QUILES,, LYLE SWANSON,, RONALD TOMLIN,, DAVID S. WILDER,. (jf, ) (Entered: 03/17/2006)
154 Joint MOTION for Extension of Time to File Response/Reply and to Revise Briefing Schedules by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 04/05/2006)
MINUTE ORDER granting 154 Motion for Extension of Time to File Response/Reply. The Defendants will file their opposition to plaintiffs' Motion for DeclaratoryJudgment and/or Partial Summary Judgment and may also file dispositive motions by May 15, 2006 and the Plaintiffs will file their reply in support of their Motion for Declaratory Judgment and/or Partial Summary Judgment by June 30, 2006.Furthermore, the defendants shall file their objections to and motion to reconsider Magistrate Judge Facciola's March 8, 2006 Opinion

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04/05/2006 04/21/2006 05/05/2006 05/09/2006 05/09/2006 05/15/2006

and Order by April 21, 2006, the Plaintiffs will file their opposition to defendants' objections to and motion to reconsider the SER Opinion and Order by May 15, 2006, and the Defendants will file their reply in support of their objections to and motion to reconsider the SER Opinion and Order by May 31, 2006. Signed by Judge Ricardo M. Urbina on 4/5/06. (djr) Modified on 4/5/2006 (jwd). Modified on 4/6/2006 (lcrmu1, ). (Entered: 04/05/2006)
Set Deadlines/Hearings: Defendant to file Opposition to Plaintiffs' Motion for Declaratory Judgment and/or Partial Summary Judgment and also filed Dispositive Motions by 5/15/2006. Plaintiffs' Reply is support of their Motion for Declaratory Judgment and/or Partial Summary Judgment due by 6/30/2006. Defendants objections to and Motion to Reconsider Magistrate Judge Facciola's March 8, 2006 Opinion and Order by 4/21/2006.Plaintiffs will file thier Opposition to defendants' Objections to and Motion to Reconsider the SER Opinion and Order by 5/15/2006. Defendants will file their Reply in Support of their Objections to and Motion to Reconsider the SER Opinion and Order by 5/31/2006. (jwd, ) Modified on 4/6/2006 (lcrmu1, ). (Entered: 04/05/2006)
155 MOTION for Reconsideration re 215 Order, 216 Memorandum &Opinion re: allowing discovery of the deliberations of selective early retirement selection boards by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Memorandum in Support# 2 Text of Proposed Order # 3 Exhibit 1# 4 Exhibit 2# 5 Exhibit 3# 6 Exhibit 4# 7 Exhibit 5# 8 Exhibit 6# 9 Exhibit 7# 10 Exhibit 8# 11 Exhibit 9# 12 Exhibit 10# 13 Exhibit 11)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(nmw, ) (Entered: 04/24/2006)
156 MOTION to Vacate 8/19/02 Order by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING. (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 05/05/2006)
157 Consent MOTION for Extension of Time to In Briefing Schedule for Plaintiffs' Motion for Declaratory and/or Summary Judgment by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/09/2006)
MINUTE ORDER granting 157 Motion for Extension of Time. The court sets forth the following revised schedule. May 22, 2006: Defendants will file their opposition to plaintiffs' Motion for Declaratory Judgment and/or Partial Summary Judgment and may also file dispositive motions; July 7, 2006: Plaintiffs will file their reply in support of their Motion for Declaratory Judgment and/or Partial Summary Judgment and an opposition to any dispositive motionsfiled by defendants; August 11, 2006: Defendants will file a reply in support of any dispositive motions filed by them. Signed by Judge Ricardo M. Urbina on 5/9/06. (lcrmu1, ) (Entered: 05/09/2006)
158 Memorandum in opposition to re 219 MOTION for Reconsideration re 215 Order, 216 Memorandum &Opinion filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit Exhibit 1, Wilkins v. USA# 2 Exhibit Exhibit 2, statutes# 3 Exhibit Exhibit 3, declaration# 4 Exhibit Exhibit 4, Expert 2005 decl# 5 Exhibit Exhibit 5, Expert Declaration# 6 Exhibit Exhibit 6, 95 SER Precept# 7 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 05/15/2006)

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05/15/2006 05/16/2006 05/16/2006 05/22/2006 05/22/2006
05/23/2006
05/24/2006 05/24/2006 05/25/2006 05/26/2006

159 Consent MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion to Vacate the August 19, 2002 Order Granting Plaintiffs' Motion to Certify a Class by RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)(Hyde, Michael) (Entered: 05/15/2006)
MINUTE ORDER granting 159 Motion for Extension of Time to File Response/Reply. The defendants' response to Plaintiffs' Motion to Vacate the August 19, 2002 Order Granting Plaintiffs' Motion to Certify a Class [Adair docket no. 156] is due Monday, June 5, 2006. Signed by Judge Ricardo M. Urbina on 5/16/06. (djr) (Entered: 05/16/2006)
Set/Reset Deadlines: Responses to plainiff's motion to vacate the 8/19/06 order due by 6/5/2006 (adc) (Entered: 05/16/2006)
160 Consent MOTION for Extension of Time to File Response/Reply for a two calendar day extension in the briefing schedule for plaintiffs' motion for declaratory and/or partial summary judgment by HANSFORD T. JOHNSON, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/22/2006)
MINUTE ORDER granting 160 Motion for Extension of Time to File Response/Reply. The deadlines for the plaintiffs' Motion for Declaratory Judgment and/or Partial Summary Judgment 212 shall be the on the following dates: May 24, 2006: Defendants will file their opposition to plaintiffs' Motion for DeclaratoryJudgment and/or Partial Summary Judgment and may also file dispositive motions;July 11, 2006: Plaintiffs will file their reply in support of their Motion for Declaratory Judgment and/or Partial Summary Judgment and an opposition to any dispositive motions filed by defendants; August 11, 2006: Defendants will file a reply in support of any dispositive motions filed by them. Signed by Judge Ricardo M. Urbina on 5/22/06. (lcrmu1, ) (Entered: 05/22/2006)
Set Deadlines/Hearings: Summary Judgment shall be due by 5/24/2006. Defendants will file their Opposition to the Plaintiffs' Motion for Declaratory Judgment and/or Partial Summary Judgment and may also file Dispositive Motion by 7/11/2006. Plaintiffs will file their reply in support of their Motion for Declaratory Judgment and/or Partial Summary Judgment and an Opposition to any Dispositive Motions filed by defendants by 8/11/2006. Defendants will file a reply in support of any dispositive motions filed by them. (jwd, ) Modified on 5/24/2006 (nmw, ). (Entered: 05/23/2006)
161 Memorandum in opposition to re 212 MOTION for Partial Summary Judgment, 211 MOTION for Entry of Declaratory Judgment and Cross−Motion to Dismiss, or in the Alternative for Partial Summary Judgment filed by HANSFORD T. JOHNSON, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Notice of Attachment of Exhibits# 2 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/24/2006)
162 Cross MOTION to Dismiss Claims in Plaintiffs' Motion for Declaratory Judgment and.or Partial Summary Judgment, Cross MOTION for Summary Judgment in the Alternative by HANSFORD T. JOHNSON, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Notice Regarding Exhibit Attachment# 2 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/24/2006)
163 Consent MOTION for Extension of Time to File Response/Reply for an Extension of Time to File Reply in Favor of Appeal of Magistrate Judge's Order by HANSFORD T. JOHNSON, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/25/2006)
MINUTE ORDER granting 225 Motion for Extension of Time to File Response/Reply, now due June 12, 2006. The court cautions the parties that the

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05/30/2006 06/12/2006 06/29/2006 07/11/2006 07/12/2006 07/12/2006
07/12/2006 07/12/2006

court disfavors extensions of time. See Standing Order. Accordingly, the court will no longer grant extensions of time absent significant justification (e.g. family emergency). The significant burdens of this litigation upon counsel are a product, in part, of their own rapid fire filings. Signed by Judge Ricardo M. Urbina on 5/26/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 05/26/2006)
MINUTE ORDER granting 156 Motion to Vacate. Because Plaintiffs are no longerwilling to act as the class representatives, a class−action cannot be maintained under Federal Rule of Civil Procedure 23. Accordingly, the Court GRANTS the Plaintiffs' Motion and hereby VACATES the Court's August 19, 2002 Order. Signed by Judge Ricardo M. Urbina on 5/30/06. (djr) (Entered: 05/30/2006)
164 REPLY to opposition to motion re 219 MOTION for Reconsideration re 215 Order, 216 Memorandum &Opinion filed by HANSFORD T. JOHNSON, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 06/12/2006)
169 MANDATE of USCA (certified copy)It is hereby ordered that the motion for an injunction and other emergency relief be denied; It is further ordered that on the courts own motion that the District Court's February 28, 2006 order be summarily affirmed; USCA#06−5074 (jsc) (Entered: 07/24/2006)
165 SUPPLEMENTAL MEMORANDUM to 161 Defendants' Responses to Plaintiffs' Proposed Statement of Material Facts to which There Is No Genuine Dispute filed by HANSFORD T. JOHNSON, RICHARD J. DANZIG, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Ex. A)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) Modified on 7/12/2006 (nmw, ). (Entered: 07/11/2006)
166 REPLY to opposition to motion re 212 MOTION for Partial Summary Judgment filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Statement of Facts Reply to Response to Facts# 2 Exhibit Notice of Exhibits)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 07/12/2006)
167 Memorandum in opposition to re 224 Cross MOTION to Dismiss Claims in Plaintiffs' Motion for Declaratory Judgment and.or Partial Summary JudgmentCross MOTION for Summary Judgment in the AlternativeCross MOTION for Summary Judgment in the Alternative filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order # 2)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 07/12/2006)
168 MOTION for Extension of Time to File Response/Reply by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 07/12/2006)
MINUTE ORDER granting 230 Motion for Extension of Time to File Response/Reply. Signed by Judge Ricardo M. Urbina on 7/12/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 07/12/2006)

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08/11/2006
09/11/2006 09/11/2006 09/11/2006 09/11/2006 09/11/2006
09/18/2006
10/20/2006 12/15/2006

170 REPLY to opposition to motion re 224 Cross MOTION to Dismiss Claims in Plaintiffs' Motion for Declaratory Judgment and.or Partial Summary JudgmentCross MOTION for Summary Judgment in the AlternativeCross MOTION for Summary Judgment in the Alternative filed by DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Ex. B# 2 Exhibit Ex. C# 3 Exhibit Ex. D# 4 Exhibit Ex. E)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 08/11/2006)
171 ORDER denying 195 Motion for Declaratory Judgment. Signed by Judge Ricardo M. Urbina on 9/11/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 09/11/2006)
172 MEMORANDUM AND OPINION. Signed by Judge Ricardo M. Urbina on 9/11/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 09/11/2006)
173 ORDER denying 219 Motion for Reconsideration. Signed by Judge Ricardo M. Urbina on 9/11/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 09/11/2006)
174 MEMORANDUM AND OPINION. Signed by Judge Ricardo M. Urbina on 9/11/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 09/11/2006)
MINUTE ORDER denying without prejudice 211 Motion for Declaratory Judgment, denying 212 Motion for Partial Summary Judgment, denying 224 Motion to Dismiss, denying 224 Motion for Summary Judgment. Signed by Judge Ricardo M. Urbina on 9/11/06. On July 7, 2006, the Court of Appeals issued a ruling in this case. In addition, on September 11, 2006, this court issued two rulings. In light of these rulings, the parties may wish to revise their overall substantive positions. Additionally, the parties need to reconsider their position with respect to the procedural posture of this case. The parties are ORDERED to confer and discuss the status of this case going forward. The parties, after conferring, may refile their motions, or may file alternative motions. The parties may file a joint status report to the court indicating their understanding of the status of this case, including any immediately anticipated activity. SO ORDERED. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 09/11/2006)
175 USCA JUDGMENT (certified copy) as to 188 Notice of Interlocutory Appeal, filed by CHAPLAINCY OF FULL GOSPEL CHURCHES,, MARTHA CARSON,, MARK R. JOHNSTON,, KLON K. KITCHEN, JR., DENISE Y. MERRITT,, DANIEL E. ROYSDEN,, MARY HELEN SPALDING,, BARBY EARL Y,, ROBERT DUANE PURSER; It is hereby ordered and adjudged that the judgment of the District Court appealed from in these cause is hereby affirmed in part, reversed in part dismissed in part vacated in part and remanded for further proceedings; USCA#05−5143 (jsc) (Entered: 09/25/2006)
MINUTE ORDER that this case is hereby STAYED pending a ruling by the D.C. Circuit in Miller v. Department of the Navy, USCA No. 05−5343. Signed by Judge Ricardo M. Urbina on 10/20/06. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 10/20/2006)
176 MOTION to Amend/Correct 10/20/2006 Order or Lift Stay by MARY HELEN SPALDING, BARBY EARL Y, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 12/15/2006)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 27 of 32

12/15/2006 12/29/2006 01/08/2007
01/24/2007
01/24/2007 02/05/2007
02/06/2007 02/06/2007 02/09/2007 02/13/2007

177 MOTION to Lift Stay by plaintiffs. (Please see Document No. 176 in 00cv566 for scanned image).(nmw, ) (Entered: 12/18/2006)
178 Memorandum in opposition to re 238 MOTION to Lift Stay, 237 MOTION to Amend/Correct 10/20/2006 Order or Lift Stay filed by DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 12/29/2006)
179 REPLY to opposition to motion re 237 MOTION to Amend/Correct 10/20/2006 Order or Lift Stay filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit Reply Exhibit 1# 2 Exhibit Reply Ex 2)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 01/08/2007)
MINUTE ORDER denying 237 Motion to Amend/Correct, denying 238 Motion to lift the stay as moot. The D.C. Circuit, on January 19, 2007, issued its ruling in Miller v. Department of the Navy, USCA No. 05−5343. The court hereby lifts the stay in this case and directs the parties to discuss the status of this case going forward and to take action consistent with the court's September 11, 2007 order. Signed by Judge Ricardo M. Urbina on 1/24/07. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 01/24/2007)
Remark: Minute Order Entry of 1/24/2007 corrected to refect that " the parties to discuss the status of this case going forward and to take action cinsistent with the Court's September 11, 2006 Order." "the entry previously read September 11, 2007 and the year was incorrect." Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(jwd) (Entered: 01/24/2007)
180 MOTION for Reconsideration re 215 Order, 235 Memorandum &Opinion, 216 Memorandum &Opinion, 234 Order on Motion for Reconsideration, MOTION for Protective Order by HANSFORD T. JOHNSON, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 02/05/2007)
181 NOTICE of Appearance by Daniel Edward Bensing on behalf of all defendants Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Bensing, Daniel) (Entered: 02/06/2007)
182 MOTION to Consolidate Cases by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 # 2)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Bensing, Daniel) (Entered: 02/06/2007)
183 STATUS REPORT (JOINT) by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 02/09/2007)
184 ORDER setting forth briefing schedules. Signed by Judge Ricardo M. Urbina on 2/13/07. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(djr) (Entered: 02/13/2007)

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02/13/2007 02/21/2007 03/05/2007 03/09/2007
03/10/2007 03/10/2007 03/12/2007 03/12/2007

Set Deadlines/Hearings: Plaintiffs' Opposition to defendants' Motion to Reconsider Order Denying appeal of Magistrate Judge's Order and for a Protectiver Order against Discovery of Selective−Early−Retirement Board deliberations [CFGC docket no. 241; Adair docket no 180] shall be due by 3/26/2007. defendants' Reply due by 4/27/2007. All partiee shall File Opening Brief related to the remand by the Court of Apppeal for the D.C. Circuit [CFGC docket no.236] due by Friday, 3/9/2007. All parties file Reply brief by Friday, 2/13/2007. (jwd, ) (Entered: 02/13/2007)
185 Memorandum in opposition to re 243 MOTION to Consolidate Cases filed by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 02/21/2007)
186 REPLY to opposition to motion re 243 MOTION to Consolidate Cases filed by HANSFORD T. JOHNSON, GERALD L. HOWEING, DEPARTMENT OF NAVY, RICHARD J. DANZIG, DANIEL T. OLIVER, DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Bensing, Daniel) (Entered: 03/05/2007)
187 MEMORANDUM by MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit # 2 Exhibit Ex 2# 3 Exhibit Ex 3# 4 Exhibit Ex 4# 5 Exhibit Ex 5# 6 Exhibit Ex 6# 7 Exhibit Ex 7# 8 Exhibit Ex 8# 9 Exhibit Ex 9# 10 Exhibit Ex 10# 11 Exhibit Ex 11# 12 Exhibit Ex 12# 13 Exhibit Ex 13# 14 Exhibit Ex 14# 15 Exhibit Ex 15# 16 Exhibit Ex 16# 17 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 03/09/2007)
188 MEMORANDUM by DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Ex. 1# 3 Exhibit Ex 2# 4 Exhibit Ex. 3# 5 Exhibit Ex 4# 6 Exhibit Ex 5# 7 Exhibit Ex 6# 8 Exhibit Ex 7)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 03/10/2007)
189 MOTION for Extension of Time to File Memorandum, MOTION Deem Memorandum as Timely Filed by DEPARTMENT OF NAVY, DEPARTMENT OF NAVY. (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF,1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 03/10/2007)
MINUTE ORDER in cases 1:00−cv−00566−RMU−JMF and 1:99−cv−02945−RMU−JMF ; GRANTING (250) Motion for Extension of Time to File. The defendants' opening memorandum is deemed filed on March 9, 2007. Signed by Ricardo M. Urbina on 3/12/07. Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(djr) Modified on 3/20/2007 (lcrmu1, ). (Entered: 03/12/2007)
190 ERRATA by JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING 187 Memorandum,, filed by MARY HELEN SPALDING, DANIEL E. ROYSDEN, DENISE Y. MERRITT, KLON K. KITCHEN, JR., CHAPLAINCY OF FULL GOSPEL CHURCHES, ROBERT DUANE PURSER, MARK R. JOHNSTON, MARTHA CARSON, BARBY EARL Y. (Attachments: # 1 Exhibit 14# 2 Exhibit 16)(Schulcz, Arthur) (Entered: 03/12/2007)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 29 of 32

03/26/2007
03/26/2007
03/27/2007 04/12/2007 04/13/2007 04/16/2007

191 ENTERED IN ERROR.....Memorandum in opposition to re (241 in 1:99−cv−02945−RMU−JMF, 241 in 1:99−cv−02945−RMU−JMF, 180 in 1:00−cv−00566−RMU−JMF, 180 in 1:00−cv−00566−RMU−JMF) MOTION for Reconsideration re (215) Order, (235) Memorandum &Opinion, (216) Memorandum &Opinion, (234) Order on Motion for Reconsideration MOTION for Reconsideration re (215) Order, (235) Memorandum &Opinion, (216) Memorandum &Opinion, (234) Order on Motion for Reconsideration MOTION for Protective Order filed by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Schulcz, Arthur) Modified on 3/27/2007 (nmw, ). (Entered: 03/26/2007)
192 Memorandum in opposition to re (241 in 1:99−cv−02945−RMU−JMF, 241 in 1:99−cv−02945−RMU−JMF, 180 in 1:00−cv−00566−RMU−JMF, 180 in 1:00−cv−00566−RMU−JMF) MOTION for Reconsideration re (215) Order, (235) Memorandum &Opinion, (216) Memorandum &Opinion, (234) Order on Motion for Reconsideration MOTION for Reconsideration re (215) Order, (235) Memorandum &Opinion, (216) Memorandum &Opinion, (234) Order on Motion for Reconsideration MOTION for Protective Order filed by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 03/26/2007)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. 191 was entered in error as a duplicate of Document No. 192 . (nmw, ) (Entered: 03/27/2007)
193 Consent MOTION for Extension of Time to File Response/Reply Addressing Mandate by Court of Appeals on Plaintiffs' Motion for a Preliminary Injunction by DEPARTMENT OF NAVY (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 04/12/2007)
194 REPLY re (188 in 1:00−cv−00566−RMU−JMF) Memorandum, filed by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit Exhibit List# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 04/13/2007)
MINUTE ORDER granting (193) Motion for Extension of Time to File Response/Reply in case 1:00−cv−00566−RMU−JMF; granting (254) Motion for Extension of Time to File Response/Reply in case 1:99−cv−02945−RMU−JMF. It is HEREBY ORDERED that the deadline set by the Courts Order dated February

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 30 of 32

04/16/2007 04/27/2007 05/01/2007 05/01/2007
05/04/2007
05/07/2007 05/21/2007

13, 2007 [CFGCdocket no. 245] for the parties to file reply memoranda related to the remand by the Court of Appeals in CFGC v. Winter, 454 F.3d 290 (D.C. Cir. 2006), originally set for April 13, 2007, isextended to Tuesday, May 1, 2007. Signed by Judge Ricardo M. Urbina on 4/16/07. Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(djr) (Entered: 04/16/2007)
Set Deadlines/Hearings: parties to file reply memoranda related to the remand by the Court of Appeals in CFGC v. Winter, 454 F.3d 290 (D.C. Cir. 2006), originally set for April 13, 2007, isextended to Tuesday, May 1, 2007 (jwd) (Entered: 04/16/2007)
195 REPLY to opposition to motion re (241 in 1:99−cv−02945−RMU−JMF, 241 in 1:99−cv−02945−RMU−JMF, 180 in 1:00−cv−00566−RMU−JMF, 180 in 1:00−cv−00566−RMU−JMF) MOTION for Reconsideration re (215) Order, (235) Memorandum &Opinion, (216) Memorandum &Opinion, (234) Order on Motion for Reconsideration MOTION for Reconsideration re (215) Order, (235) Memorandum &Opinion, (216) Memorandum &Opinion, (234) Order on Motion for Reconsideration MOTION for Protective Order filed by DEPARTMENT OF NAVY. Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 04/27/2007)
196 RESPONSE to Plaintiffs' Memorandum Addressing Mandate by Court of Appeals on Plaintiffs's Motion for a Preliminary Injunction filed by DEPARTMENT OF NAVY. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G# 8 Exhibit Exhibit H# 9 Exhibit Exhibit I# 10 Exhibit Exhibit J# 11 Exhibit Exhibit K# 12 Exhibit Exhibit L)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Hyde, Michael) (Entered: 05/01/2007)
197 REPLY re (188 in 1:00−cv−00566−RMU−JMF) Memorandum, to Defendants' Opening Brief filed by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. (Attachments: # 1 Exhibit H# 2 Exhibit I# 3 Exhibit J)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 05/01/2007)
198 Unopposed MOTION for Leave to File Surreply by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 05/04/2007)
MINUTE ORDER granting 198 Motion for Leave to File a Surreply. Signed by Judge Ricardo M. Urbina on 5/7/07. (djr) (Entered: 05/07/2007)
199 SURREPLY to re (196 in 1:00−cv−00566−RMU−JMF) Response to any document,, Defendnats' Mandate Reply Memorandum filed by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT,

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 31 of 32

06/18/2007 11/17/2007 11/19/2007 08/18/2008
10/10/2008 10/10/2008 11/10/2008

GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING, MARY HELEN SPALDING, BARBY EARL Y, ROBERT DUANE PURSER, CHAPLAINCY OF FULL GOSPEL CHURCHES, MARTHA CARSON, MARK R. JOHNSTON, KLON K. KITCHEN, JR, DENISE Y. MERRITT, DANIEL E. ROYSDEN. Associated Cases: 1:99−cv−02945−RMU−JMF, 1:00−cv−00566−RMU−JMF(Schulcz, Arthur) (Entered: 05/21/2007)
200 MEMORANDUM ORDER denying Motion to Transfer Case; granting the defendants' motion to consolidate 182 ; denying all pending motions without prejudice; directing that this case be incorporated into a new miscellaneous case number 07−269 and all further pleadings be filed in the miscellaneous case; parties may refile motions in Miscellaneous No 07mc269;administratively closing the civil actions pending further orderof the Court. Signed by Judge Ricardo M. Urbina on 06/18/07. (jeb, ) (Entered: 06/18/2007). Signed by Judge Ricardo M. Urbina on 6/18/07. (jeb, ) (Entered: 06/18/2007)
201 Joint MOTION for Order Dropping Plaintiff R. Tomlin by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, RONALD TOMLIN, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 11/17/2007)
MINUTE ORDER granting 201 Motion for Order to drop plaintiff Tomlin. Signed by Judge Ricardo M. Urbina on 11/19/07. (lcrmu1, ) (Entered: 11/19/2007)
202 MOTION for Order Amending Third Complaint by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING (Attachments: # 1 Exhibit Amended Complaint, # 2 Exhibit Ex 1 to Amended Complaint, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Text of Proposed Order)(Schulcz, Arthur) (Entered: 08/19/2008)
203 Memorandum in opposition to re (202 in 1:00−cv−00566−RMU) MOTION for Order Amending Third Complaint filed by NORBERT R. RYAN, BYRON HOLDERBY, JR, DEPARTMENT OF NAVY, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, GERALD L. HOEWING, HANSFORD T. JOHNSON, GERALD L. HOWEING, DANIEL T. OLIVER. Associated Cases: 1:99−cv−02945−RMU, 1:00−cv−00566−RMU(Hall, Christopher) (Entered: 10/10/2008)
204 Memorandum in opposition to re 202 MOTION for Order Amending Third Complaint filed by RICHARD J. DANZIG, NORBERT R. RYAN, BYRON HOLDERBY, JR, DEPARTMENT OF NAVY, BARRY BLACK, LOUIS V. IASIELLO, DEPUTY CHIEF OF CHAPLAINS, GERALD L. HOEWING. (Hall, Christopher) (Entered: 10/10/2008)
205 REPLY to opposition to motion re 202 MOTION for Order Amending Third Complaint filed by JOHNS ADAMS, JOHN WITHERSPOON, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING. (Schulcz, Arthur) (Entered: 11/10/2008)

Case: 1:00-cv-566 As of: 02/14/2013 07:38 AM EST 32 of 32

01/30/2009
01/30/2009 01/30/2009 01/30/2009

206 MEMORANDUM OPINION in case 1:07−mc−00269−RMU; granting (202) the plaintiffs' motion to amend in case 1:00−cv−00566−RMU; granting (262) the plaintiffs' motion to amend in case 1:99−cv−02945−RMU. Signed by Judge Ricardo M. Urbina on 01/30/2009. (lcrmu1) Modified on 1/30/2009 (jwd ). (Entered: 01/30/2009)
NOTICE OF CORRECTED DOCKET ENTRY: re: docket entry 206 entry has been corrected to read "Memorandum Opinion." (jwd ) (Entered: 01/30/2009)
207 ORDER in case 1:07−mc−00269−RMU; granting (202) the plaintiffs' motion to amend in case 1:00−cv−00566−RMU; granting (262) the plaintiffs' motion to amend in case 1:99−cv−02945−RMU. Signed by Judge Ricardo M. Urbina on 01/30/2009. (lcrmu1) (Entered: 01/30/2009)
208 FOURTH AMENDED COMPLAINT against DONALD C. WINTER, HARVEY, ROBERT BURT, UNITED STATES NAVY, DEPUTY CHIEF OF CHAPLAINS filed by RICHARD F. HAMME, MICHAEL A. WRIGHT, WILLIAM C. BLAIR, LARRY FARRELL, RAFAEL J. QUILES, ROBERT H. ADAIR, LYLE SWANSON, DAVID S. WILDER, MICHAEL BELT, GREGORY R. DE MARCO, FURNISS HARKNESS, MICHAEL LAVELLE, GEORGE W. LINZEY, TIMOTHY D. NALL, THOMAS RUSH, JAMES M. WEIBLING. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20)(nmw, ) (Entered: 02/02/2009)

 
 375 F.3d 1169 (2004)
In re: Gordon R. ENGLAND, Secretary of the Navy, et al., Petitioners.
Nos. 03-5329, 03-5333, 03-5334.
United States Court of Appeals, District of Columbia Circuit.
Argued April 22, 2004. Decided July 27, 2004. Rehearing Denied September 21, 2004.
1170*1170 Robert M. Loeb, Attorney, U.S. Department of Justice, argued the cause for petitioners/appellants. With him on the briefs were Peter D. Keisler, Assistant Attorney General, Roscoe C. Howard, Jr., U.S. Attorney, and Marleigh D. Dover, Attorney.
Arthur A. Schulcz, Sr. argued the cause and filed the brief for respondents/appellees.
Before: GINSBURG, Chief Judge, and GARLAND and ROBERTS, Circuit Judges.
Rehearing En Banc Denied September 21, 2004.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge:
Navy chaplains, like other Navy officers, are recommended for promotion by "selection boards" consisting of superior officers who meet and discuss the relative merits of candidates for promotion. The federal statute establishing the procedures for such selection boards, which applies to all the armed services, provides that board proceedings "may not be disclosed to any person not a member of the board," 10 U.S.C. § 618(f), and board members take an oath of confidentiality to implement this requirement. Certain current and former Navy chaplains and their particular endorsing agency, the Chaplaincy of Full Gospel Churches (CFGC), sued the Navy, alleging that it discriminates against chaplains affiliated with the CFGC in, among other things, promotion decisions. The chaplains and the CFGC sought to compel the Secretary of the Navy to release selection board members from their oath of confidentiality, to allow them to testify about selection board proceedings leading to the challenged decisions.
1171*1171 The district court ruled that Section 618(f) did not preclude disclosure of selection board proceedings through civil discovery, because Congress had not expressly

addressed the question of such discovery in providing that board proceedings "may not be disclosed." The court accordingly ordered the Secretary to release selection board members from their oath. We reverse and hold that Section 618(f) bars the disclosure through civil discovery of promotion selection board proceedings.
I. Background
A. The History and Organization of Navy Chaplains
In November 1775, the Continental Congress adopted the first regulations to govern the fledgling Continental Navy. See Rules for the Regulation of the Navy of the United Colonies of North America (Nov. 28, 1775), reprinted in relevant part in 1 Clifford M. Drury, The History of the Chaplain Corps, United States Navy 3 (Bureau of Naval Personnel 1984). Although those regulations did not expressly create a chaplain position, Article 2 provided that "[t]he Commanders of the ships of the thirteen United Colonies, are to take care that divine service be performed twice a day on board, and a sermon preached on Sundays, unless bad weather or other extraordinary accidents prevent." Id. These duties often fell to the captain himself or a designee: only two chaplains were known to have served in the Continental Navy during the Revolutionary War, and the Navy limited the number of chaplains on active duty to nine until 1842 and to 24 from then until 1914. Drury, supra, at 5, 62.
Early chaplains were responsible for educating midshipmen and sailors in addition to their religious duties. The Navy placed great emphasis on the chaplains' role as teacher, selecting them "more for their teaching ability than for their experience or training as ministers." Id. at 18. Indeed, the first "naval academy" was established 200 years ago at the Washington Navy Yard by Chaplain Robert Thompson, who taught midshipmen mathematics and navigation. Id. at 18-20. The success of that academy led to the establishment of the United States Naval Academy at Annapolis, Maryland in 1845.
From those beginnings, the Navy Chaplain Corps has grown with the service to over 800 strong. It is the responsibility of Navy chaplains to "provide for the free exercise of religion for all members of the [Navy and Marine Corps], their dependents, and other authorized persons." Directive No. 1304.19, Appointment of Chaplains for the Military Services ¶ 3 (Dep't of Def. Sept. 18, 1993) (Directive). The Navy chaplain's mission is to accommodate the religious needs of sailors and Marines by providing religious services, counseling, and support. See Marine Corps Warfighting Publication 6-12,Religious Ministry Support in the United States Marine Corps 1-4, 1-5 (Dec. 12, 2001). In addition to this religious ministry,

Navy chaplains also provide ethics instruction and critical incident debriefings, and advise commanders on religious, moral, and ethical issues. Id. at 1-5.
A Navy chaplain's role within the service is "unique," involving simultaneous service as clergy or a "professional representative[ ]" of a particular religious denomination and as a commissioned naval officer. OPNAVINST 1730.1, Chaplains Manual 1-2-1-3 (Dep't of the Navy Oct. 3, 1973). A chaplain must satisfy not only the normal physical and educational requirements to become a commissioned officer, but also must have a graduate level theology degree or equivalent and an ecclesiastical endorsement — official notice from a faith group endorsing agency that a candidate1172*1172 "is professionally qualified to represent that faith group within the military Chaplaincy." Chaplain Candidate Program Officer Handbook Glossary; see Directive ¶¶ 5.1-5.2. Ecclesiastical endorsement must be maintained throughout a chaplain's career; withdrawal of ecclesiastical endorsement at any point in a chaplain's career could result in separation from the Navy. Directive ¶ 5.1.4.
The Navy categorizes chaplains into four general religious categories or "faith groups" according to similarities in religious denominations: Roman Catholic, Liturgical Protestant, Non-Liturgical Protestant, and Special Worship. Liturgical Protestant primarily includes those protestant denominations that trace their origins to the Protestant Reformation and whose religious services are characterized by a set liturgy or order of worship, including the Lutheran, Episcopal, Methodist, and Presbyterian denominations. CFGC Second Am. Compl. ¶ 12(a) (CFGC Compl.). Non-Liturgical Protestant refers to protestant denominations "without a formal liturgy or order in their worship service" whose clergy do not wear religious dress during services, comprising the Baptist, Evangelical, Pentecostal, Bible, and Charismatic churches. Id. ¶ 12(b). The Special Worship category includes the Christian Orthodox, Jewish, Muslim, and Mormon faiths. Appellants' Br. at 5.
B. The Personnel System
The Navy uses the same personnel system for all officers, including chaplains. That system seeks to manage officers' careers to provide the Navy with the best qualified personnel through three critical personnel decisions: (1) promotion; (2) continuation on active duty; and (3) selective early retirement. A naval officer must be recommended by a promotion selection board to advance in rank from lieutenant (junior grade) through rear admiral (lower half). See 10 U.S.C. § 611(a). Continuation on active duty decisions occur when the needs of the Navy require the selection of certain officers — otherwise subject to discharge or retirement for failing to be promoted to the next rank — to continue on active duty for an established period of time. See id. § 637(a)(1), (d). Conversely, selective early retirement

decisions generally involve the selection of officers in the grade of captain who were passed over for promotion two or more times for involuntary, early retirement. Id. § 638(a)(1).
Each of these personnel decisions involves a selection board comprised of naval officers who deliberate, make selections, and then submit their recommendations to the Secretary of the Navy. Promotion selection boards are convened under 10 U.S.C. § 611(a); continuation on active duty and selective early retirement boards are convened under 10 U.S.C. § 611(b). Selection boards must consist of five or more active-duty naval officers who "must be serving in a grade higher than the grade of the officers under consideration by the board, except that no member of a board may be serving in a grade below ... lieutenant commander." 10 U.S.C. § 612(a)(1). At least one member of the board must be from the category being considered; thus, if a selection board is considering chaplains, at least one board member must be a chaplain. See id. § 612(a)(2)(A).
Promotion selection boards may only consider an eligible officer's official military personnel file and the selection board "precept" issued to the board by the Secretary of the Navy. See 10 U.S.C. § 615(a), (b). A precept is the Secretary's official guidance to the board, consisting of: (1) the maximum number of officers that the board may recommend for promotion, (2) "information or guidelines relating to the needs of the [Navy] 1173*1173 for officers having particular skills," and (3) applicable guidelines from the Secretary of Defense. Id. § 615(b). A promotion selection board considers these items and recommends those officers "whom the board ... considers best qualified for promotion." Id. § 616(a).
The promotion board reports its recommendations to the Secretary, 10 U.S.C. § 617(a), who takes action on the report in accordance with Section 618. If the Secretary "determines that the board acted contrary to law or regulation or to guidelines furnished the board under Section 615(b)," the Secretary must return the board's recommendations with a written explanation for further proceedings. Id. § 618(a)(2). The Secretary otherwise reviews the board's recommendations and adopts or modifies the list, and then forwards it to the President through the Chairman of the Joint Chiefs of Staff and the Secretary of Defense. See id. § 618(b), (c). The President ultimately appoints recommended officers for promotion to the next rank, subject to confirmation by the Senate for promotions above the rank of lieutenant (junior grade). See id. § 624.
The other statutory selection boards — continuation on active duty and selective early retirement — are convened under Section 611(b) and have somewhat different procedures. The Secretary has final authority over these boards, and no Presidential or Senatorial action is involved. In addition, unlike the situation with promotion boards, there are no statutory guidelines that dictate what information other statutory selection boards may consider.

By statute, each member of a selection board must take an oath to perform his 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. As noted, members of promotion selection boards may not disclose the proceedings of the board to anyone not a member of the board, "[e]xcept as authorized or required by [Section 618]." Id.§ 618(f). Navy regulations also require all selection board members to take an oath to "not divulge the proceedings of this board except as authorized or required by the Secretary of the Navy or higher authority." Mem. in Support of Mot. for an Order Requiring Def. Secretary of the Navy to Release Personnel Associated with Chaplain Promotion Boards from their Oath Not to Disclose Promotion Board Proceedings (Oct. 29, 2002) (Pls.' Mot.), Ex. 1, Oaths; see also SECNAV Instruction 1420.1A, Promotion and Selective Early Retirement of Commissioned Officers on the Active Duty Lists of the Navy and Marine Corps ¶ 12(f) (Dep't of the Navy Jan. 8, 1991) ("Each member ... shall swear or affirm that he or she will not disclose the proceedings or recommendations of the board except as authorized or required by SECNAV or higher authority.").
Section 618(f) was enacted as part of the Defense Officer Personnel Management Act (DOPMA), Pub.L. No. 96-513, 94 Stat. 2835 (1980) (codified in scattered sections of 10 U.S.C.). Through DOPMA, Congress sought to update the existing statutory framework for military promotions established by the Officer Personnel Act of 1947, Pub.L. No. 80-381, 61 Stat. 795, by eliminating the services' individual promotion systems in favor of "a single, permanent promotion system under a single, applicable statutory grade table and under laws that would be the same for each service." S.Rep. No. 96-375, at 3 (1979). Section 618(f) codified in a uniform manner the established practice in the individual services of barring the disclosure of selection board proceedings. See, e.g., Brenner v. United States, 202 Ct.Cl. 678, 686 (Ct.Cl. 1973) ("The proceedings of selection 1174*1174 boards are secret.") (Navy);Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 815 (Ct.Cl.1979) (en banc)("Selection board proceedings are secret") (Air Force); Army Regulation 624-100, Promotion of Officers on Active Duty ¶ 2-8 (Oct. 20, 1975).
C. Procedural History
Plaintiffs — current and former Non-Liturgical Protestant chaplains and their endorsing agency, the Chaplaincy of Full Gospel Churches (CFGC) (collectively "Chaplains") — filed two separate suits against the Secretary of the Navy, other Navy officials, and the Navy (collectively "Navy"), alleging that "the Navy has established, promoted, and maintained religious quotas and other discriminatory practices in the Navy Chaplain Corps in violation of the First and Fifth Amendments." Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250, 253 (D.D.C.2003) (CFGC); see also Adair v. England, 217 F.Supp.2d 7, 8

(D.D.C.2002). The district court subsequently consolidated the cases for purposes of all pretrial motions. Adair, 217 F.Supp.2d at 8. The Chaplains allege that the Navy's discriminatory practices favor Catholic and Liturgical Protestant chaplains to the detriment of Non-Liturgical Protestant chaplains. See CFGC Compl. ¶¶ 3, 56-63.
As pertinent here, the Chaplains allege that the Navy discriminates against chaplains endorsed by the CFGC through promotions and retention. See CFGC, 217 F.R.D. at 253. The Chaplains claim that this discrimination is manifested in the policies for and operation of promotion and other statutory selection boards, permitting "religious bias" and "denominational issues" — criteria not related to career performance — to interfere with the proper selection of the best-qualified chaplains for advancement. Adair Class Action First Am. Compl. ¶ 50 (Adair Compl.); see CFGC, 217 F.R.D. at 253-54. The Chaplains allege that the Navy: (1) provided promotion boards with each candidate's religious denomination, CFGC Compl. ¶ 69; (2) used religious quotas and denominational criteria for promotion and forced retirement selections, Adair Compl. ¶ 50; (3) denied promotions based upon ideological criteria, see id.; and (4) "stacked" promotion and other statutory selection boards with Catholic and Liturgical Protestant chaplains, id. ¶ 47.
The Chaplains requested that the Secretary release board members from their oath of confidentiality to allow them to testify; the Secretary declined to do so. The Chaplains thereupon filed a motion to compel discovery of selection board proceedings, seeking to depose board members. See Pls.' Mot. The Navy argued that 10 U.S.C. § 618(f) barred disclosure of selection board deliberations. The district court disagreed and granted the Chaplains' motion, holding that "[b]ecause section 618(f) does not contain specific language barring discovery, and because of the circuit's emphasis on providing litigants full access to relevant information, the court concludes that section 618(f) does not create an absolute or qualified privilege barring discovery of selection-board proceedings." 217 F.R.D. at 260. The Navy filed an interlocutory appeal and a petition for mandamus, which we consolidated.
II. Appellate Jurisdiction
This court has appellate jurisdiction over "final decisions" of the district court. 28 U.S.C. § 1291; DSMC, Inc. v. Convera Corp., 349 F.3d 679, 682 (D.C.Cir. 2003). Discovery orders are accordingly generally appealable only upon a final decision in the case, not on an interlocutory basis. McKesson Corp. v. Islamic Republic of Iran,52 F.3d 346, 353 (D.C.Cir.1995). The Navy nonetheless argues that we have 1175*1175interlocutory jurisdiction to hear its appeal under the collateral order doctrine. SeeCohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949).

"The collateral order doctrine is best understood not as an exception to the `final decision' rule laid down by Congress in § 1291, but as a `practical construction' of it."Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 1995, 128 L.Ed.2d 842 (1994) (quoting Cohen, 337 U.S. at 546, 69 S.Ct. at 1225-26). The collateral order doctrine allows appeals from the "small category" of decisions "that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action." Swint v. Chambers County Comm'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 1207, 131 L.Ed.2d 60 (1995); see United States v. Philip Morris Inc., 314 F.3d 612, 617 (D.C.Cir.2003).
1. It is undisputed that the district court conclusively ordered the Navy to release board members from their oaths not to disclose board proceedings. The district court considered and rejected all the Navy's arguments opposing the motion to compel, and, with respect to the question on appeal, concluded that "section 618(f) does not create an absolute or qualified privilege barring discovery of selection-board proceedings." CFGC, 217 F.R.D. at 260. The first requirement is satisfied.
2. To satisfy the second requirement under the collateral order doctrine, the Navy must show that "appellate review will resolve an important issue completely separatefrom the merits of the action." Philip Morris, 314 F.3d at 617 (emphases added). Determining whether Section 618(f) bars discovery in this case does not require this court to consider the merits of the Chaplains' constitutional claims; the separability prong of the second requirement is clearly satisfied.
"Importance" is a more subjective inquiry. The Supreme Court has explained that this inquiry requires a "judgment about the value of the interests that would be lost through rigorous application of [the] final judgment requirement," and that "`important' in Cohen's sense [means] being weightier than the societal interests advanced by ordinary operation of final judgment principles." Digital Equip., 511 U.S. at 878-79, 114 S.Ct. at 2001-02. This court has explained that an issue is important underCohen "if the interests that would potentially go unprotected without immediate appellate review of that issue are significant relative to the efficiency interests sought to be advanced by adherence to the final judgment rule." Philip Morris, 314 F.3d at 617 (quoting In re Ford Motor Co., 110 F.3d 954, 959 (3d Cir.1997)).
In Philip Morris, we analyzed whether the collateral order doctrine provided appellate jurisdiction to hear an interlocutory appeal challenging denial of an attorney-client privilege claim. The court held that the attorney-client privilege was "important" underCohen, concluding that "the institutional benefits of allowing interlocutory review of

attorney-client privilege claims outweigh the costs of delay and piecemeal review that may result." Philip Morris, 314 F.3d at 618. The court explained that the privilege "`encourage[s] full and frank communication between attorneys and their clients'" and "promotes `broader public interests in the observance of law and administration of justice.'" Id. (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981); alteration in Philip Morris). Those "important institutional interests" would be "eviscerate[d]" by an erroneous privilege ruling, underscoring1176*1176 the importance of interlocutory review. Id.
The Navy argues that Section 618(f) similarly creates a privilege that protects the deliberations of military promotion boards from disclosure. According to the Secretary of the Navy, "[f]ree, uninhibited, and candid deliberations by selection boards are ... vital to the effective functioning of the selection board process," and disclosure of board proceedings would "severely undermine the ability ... of the Navy to effectively operate its promotion and selective early retirement system." Decl. of Gordon R. England, ¶ 9 (England Decl.). The proper application of Section 618(f) therefore implicates institutional interests in the proper administration of the armed forces.
The statutory nature of the claimed privilege also supports a finding of importance under Cohen. In Digital Equipment, the Supreme Court suggested that "[w]here statutory and constitutional rights are concerned," it is easier to conclude that they are "weightier than the societal interests advanced by the ordinary operation of final judgment principles." 511 U.S. at 879, 114 S.Ct. at 2002. We cannot say that the importance of the interests assertedly protected by Congress through Section 618(f) should be subordinated to the general interest in avoiding litigation delay and piecemeal review. If it is correct about the critical nature of the protection from disclosure provided by Section 618(f), the Navy should not lose the benefit of that protection prior to appellate review.
3. To satisfy the final requirement for invoking the collateral order doctrine, the appellant must show that the district court's order "will be effectively unreviewable on appeal from a final judgment." Philip Morris, 314 F.3d at 617. In Philip Morris, this court determined that a party's claim of attorney-client privilege would be "effectively unreviewable" because disclosure of privileged material "would mak[e] the issue of privilege effectively moot" on appeal. 314 F.3d at 619. "Disclosure followed by appeal after final judgment is obviously not adequate in [privilege] cases — the cat is out of the bag." In re Papandreou, 139 F.3d 247, 251 (D.C.Cir.1998).
So too here. The right at issue — the Navy's claim of statutory privilege — would be destroyed if board members were compelled to testify; there would be no privilege to protect

on appeal from final judgment. "It would be impossible for [this] court to sort out and redress the harm caused by the incorrect disclosure." Philip Morris, 314 F.3d at 619.
Having found that this interlocutory appeal satisfies the Cohen requirements, we hold that the collateral order doctrine provides appellate jurisdiction to review the district court's order.[1] We now turn to the 1177*1177 merits of the Navy's claim of statutory privilege.
III. Merits
The Federal Rules of Civil Procedure encourage the exchange of information through broad discovery. Federal Rule of Civil Procedure 26(b)(1) authorizes "discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party." The district court concluded that the selection board proceedings at issue in this case are relevant to the Chaplains' claims, and thus are discoverable under Rule 26(b)(1). The Navy argues, however, that Section 618(f) creates a statutory privilege barring the disclosure of selection board proceedings. Although the terms of a statute should be strictly construed "to avoid a construction that would suppress otherwise competent evidence," St. Regis Paper Co. v. United States, 368 U.S. 208, 218, 82 S.Ct. 289, 295, 7 L.Ed.2d 240 (1961), if there is a valid statutory privilege, then "information may be withheld, even if relevant to the lawsuit and essential to the establishment of plaintiff's claim." Baldrige v. Shapiro, 455 U.S. 345, 360, 102 S.Ct. 1103, 1112, 71 L.Ed.2d 199 (1982).
1. We begin with the plain language of the statute in question. "It is well established that `when the statute's language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms.'" Lamie v. United States Tr., 540 U.S. 526, 124 S.Ct. 1023, 1030, 157 L.Ed.2d 1024 (2004) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 1947, 147 L.Ed.2d 1 (2000)). Section 618(f) provides, in full:
Except as authorized or required by this section, proceedings of a selection board convened under section 611(a) of this title may not be disclosed to any person not a member of the board.
This is the language of command — "may not be disclosed" — in a context in which commands are expected to be obeyed. There is no inherent ambiguity in the phrase "may not be disclosed" that would justify departing from those plain terms pursuant to a judiciallycrafted exception.
That conclusion is fortified by the fact that Congress provided an express exception to the otherwise categorical ban on disclosure. The opening clause of Section 618(f) provides an

exception for disclosures "authorized or required" by Section 618 itself. In other words, the drafters of Section 618(f) wrote the ban on disclosure in such broad and absolute terms that they felt the need to specify that board proceedings could be disclosed in connection with the very reason you have them — to submit recommendations to the Secretary of a military department, the Secretary of Defense, and ultimately the President for action under Section 618.
Section 618 also directs the Secretary of a military department to review the board reports "to determine whether the board has acted contrary to law or regulation or to guidelines furnished the board." 10 U.S.C. § 618(a)(1). A Department of Defense Instruction accordingly permits the Secretary of a military department to release board members from the confidentiality requirements if "the integrity of the board's proceedings has been affected by improper influence of senior military or civilian authority, misconduct by the board president or a member, or any other reason." Instruction 1320.14, Commissioned Officer Promotion Program Procedures ¶ 6.2.1.3 (Dep't of Def. Sept. 24, 1996); accord id. ¶¶ 6.2.2.5, E4.1.6. Contrary to the Chaplains' contention, the fact that the Secretary of the Navy exercised this authority in connection with Inspector General inquiries in 1997 and 1998 does not support implying an additional exception 1178*1178 for civil discovery. The statute makes no provision for disclosure pursuant to the Federal Rules of Civil Procedure, even as it does for disclosure pursuant to Section 618 itself, and we are reluctant to imply an additional exception for that purpose. See Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 109, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)(declining to imply an exception to Consumer Product Safety Act restrictions on disclosure of accident reports for disclosures under FOIA; "[i]f Congress had intended to exclude FOIA disclosures from [the statutory restrictions] it could easily have done so explicitly ... as it did with respect to the other listed exceptions.... We are consequently reluctant to conclude that Congress' failure to include FOIA requests within the exceptions ... was unintentional."). "When Congress provides exceptions in a statute, it does not follow that courts have authority to create others."United States v. Johnson, 529 U.S. 53, 58, 120 S.Ct. 1114, 1118, 146 L.Ed.2d 39 (2000); see also Detweiler v. Pena, 38 F.3d 591, 594 (D.C.Cir.1994) ("Where a statute contains explicit exceptions, the courts are reluctant to find other implicit exceptions.").
"[W]here the terms of a statute are unambiguous, judicial inquiry is complete,"Adams Fruit Co. v. Barrett, 494 U.S. 638, 642, 110 S.Ct. 1384, 1387, 108 L.Ed.2d 585 (1990), and resort to "the more controversial realm of legislative history" is unnecessary. Lamie, 124 S.Ct. at 1031. We find it "instructive," however, id. at 1033, to note that such history as there is fully comports with our plain language reading, and that nothing in that history remotely suggests

that Congress intended an unexpressed exception to the ban on disclosure for civil discovery.
Disclosure of selection board proceedings in civil discovery would certainly undermine, if not totally frustrate, the purpose of Section 618(f). As the Secretary of the Navy explained in his declaration, "[s]election board members will be less likely to engage in frank and open discussion if such discussions will be open to public scrutiny." England Decl., ¶ 9. If board members knew that candidates passed over for promotion could gain access to board proceedings, that would clearly inhibit frank assessment of candidates' relative strengths and weaknesses. As Secretary England explained:
[D]etermining which officers are best qualified for promotion from a pool of many fully qualified candidates involves inherently difficult and subjective evaluations. ... Release of information regarding these proceedings to the public will severely undermine the ability of the Department of the Navy to effectively operate its promotion and selective early retirement systems.
Id.
2. The Supreme Court has addressed the question of whether broad, statutory bans on disclosure should be applied according to their terms, when doing so interferes with a civil litigant's effort to obtain discovery of relevant material under Federal Rule of Civil Procedure 26. In Baldrige v. Shapiro, 455 U.S. at 348-52, 102 S.Ct. at 1106-08, two municipalities sued the Department of Commerce, seeking to obtain from the Census Bureau raw census data — including individual respondents' questionnaires — to challenge the results of the 1980 census. Section 8(b) of the Census Act, 13 U.S.C. § 8(b), provided in relevant part that "the Secretary [of Commerce] may furnish copies of tabulations and other statistical materials which do not disclose information reported by, or on behalf of, any particular respondent." Section 9(a) of the Act, 13 U.S.C. § 9(a), provided that:
1179*1179 Neither the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, may, except as provided in section 8 of this title —
...
(3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports.
The Court recognized that the discovery rules "encourage open exchange of information," and quoted the admonition in St. Regis Paper to avoid construing statutes to suppress otherwise competent evidence. 455 U.S. at 360, 102 S.Ct. at 1112. The Court nevertheless

held that the "unambiguous language of the confidentiality provisions," id. at 355, 102 S.Ct. at 1110, barred discovery of the protected information:
Congress, of course, can authorize disclosure in executing its constitutional obligation to conduct a decennial census. But until Congress alters its clear provisions under §§ 8(b) and 9(a) of the Census Act, its mandate is to be followed by the courts.
Id. at 362, 102 S.Ct. at 1113.
The Court noted that Congress's purpose in barring disclosure was to promote the success and accuracy of the census by assuring the public that responses would be kept confidential, and that "[d]isclosure by way of civil discovery would undermine the very purpose of confidentiality contemplated by Congress." Id. at 361, 102 S.Ct. at 1113. The Constitution expressly authorizes Congress to conduct a census "as they shall by Law direct," U.S. CONST. art. I, § 2, cl. 3, and the Court concluded that Congress's "wisdom" in barring all disclosure of individual information "is not for us to decide in light of Congress' 180 years' experience with the census process." Id.
3. The district court took a different approach here and declined to apply the plain language of Section 618(f), because while Congress said board proceedings "may not be disclosed," it did not say board proceedings may not be disclosed in civil discovery. See CFGC, 217 F.R.D. at 260 ("section 618(f) does not contain specific language barring discovery"). The Supreme Court has repeatedly rejected such an approach to statutory construction as a general matter. See, e.g., PGA Tour, Inc. v. Martin, 532 U.S. 661, 689, 121 S.Ct. 1879, 1897, 149 L.Ed.2d 904 (2001) ("`the fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.'") (quoting Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 1956, 141 L.Ed.2d 215 (1998) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499, 105 S.Ct. 3275, 3286, 87 L.Ed.2d 346 (1985))); accord Consumer Elecs. Ass'n v. FCC, 347 F.3d 291, 298 (D.C.Cir.2003) ("[T]he Supreme Court has consistently instructed that statutes written in broad, sweeping language should be given broad, sweeping application."). The district court relied for the opposite approach upon our cases stating that "general statutory bans on publication do not bar limited disclosure in judicial proceedings, including court-supervised discovery," Laxalt v. McClatchy, 809 F.2d 885, 889 (D.C.Cir.1987), and noting that "where Congress thought it necessary to protect against court use of records it has expressly so provided by specific language." Freeman v. Seligson, 405 F.2d 1326, 1351 (D.C.Cir.1968); see alsoFriedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1343 (D.C.Cir.1984)(quoting Freeman).

The district court seriously overread those precedents. In Laxalt, for example, we held that the Privacy Act did not prohibit disclosure of protected material in discovery, but the provision in question expressly permitted disclosure "pursuant 1180*1180 to the order of a court of competent jurisdiction." 5 U.S.C. § 552a(b)(11) (1982); see Laxalt,809 F.2d at 887 n. 7. We specifically noted that fact in concluding that the Privacy Act did not trump the normal discovery rules. See Laxalt, 809 F.2d at 889. This holding is hardly precedent for overriding a categorical prohibition on disclosure of the sort at issue here.
Friedman and Freeman considered different versions and clauses of Section 8(a) of the Commodities Exchange Act (CEA), governing investigative files of the Secretary of Agriculture and, later, the Commodity Futures Trading Commission (CFTC). In each case, we ruled that the provision in question did not bar civil discovery. InFriedman, however, the clause simply provided that the CFTC "may withhold from public disclosure any data or information concerning or obtained in connection with any pending investigation of any person." 7 U.S.C. § 12(a) (emphasis added). "May withhold" is not tantamount to "may not be disclosed."
In Freeman, the clause at issue provided that the Secretary of Agriculture "may publish" the results of investigations and statistical information of interest to the public, "except data and information which would separately disclose the business transactions of any person and trade secrets or names of customers." See 405 F.2d at 1340-41 (emphasis omitted; quoting statute). The majority held that disclosure in civil discovery was not "publishing" of the sort prohibited by this language; Congress was concerned with "widespread dissemination of information not otherwise available to the public, and not with disclosure in judicial proceedings." Id. at 1349. Here, Section 618(f) does not merely prohibit "publication," it categorically bars meredisclosure to anyone not a member of the promotion selection board.[2]
4. In Baldrige, the Court noted that a conclusion that a statutory privilege exists "shields the requested information from disclosure despite the need demonstrated by the litigant." 455 U.S. at 362, 102 S.Ct. at 1113; see id. at 360, 102 S.Ct. at 1112 ("If a privilege exists, information may be withheld, even if relevant to the lawsuit and essential to the establishment of a plaintiff's claim."). As the Supreme Court reiterated this past Term:
Our unwillingness to soften the import of Congress' chosen words even if we believe the words lead to a harsh outcome is longstanding. It results from "deference to the supremacy of the Legislature, as well as recognition that Congressmen 1181*1181 typically vote on the language of a bill."

Lamie, 124 S.Ct. at 1032 (quoting United States v. Locke, 471 U.S. 84, 95, 105 S.Ct. 1785, 1793, 85 L.Ed.2d 64 (1985)). As in Baldrige, we accordingly apply the bar on disclosure as written, and conclude that it applies to block civil discovery of promotion selection board proceedings in civil litigation.
5. Section 618(f) applies to "proceedings of a selection board convened under section 611(a) of this title." 10 U.S.C. § 618(f) (emphasis added). Section 611(a) provides authorization to convene "selection boards to recommend for promotion," while Section 611(b) provides authorization to convene the other statutory selection boards — continuation on active duty and selective early retirement — governed by Sections 637 and 638 respectively. 10 U.S.C. § 611(a), (b). There is no provision similar to Section 618(f) — barring disclosure of board proceedings — in Sections 637 and 638. 10 U.S.C. §§ 637, 638.
The plaintiffs' motion to compel was titled "Motion for an Order Requiring Defendant Secretary of the Navy to Release Personnel Associated with Chaplain Promotion Boards from their Oath Not to Disclose Promotion Board Proceedings." Although the title mentioned only promotion boards, the plaintiffs requested the court to compel the Secretary to release all members of "promotion, selective early retirement (`SER') and other statutory boards" from their oath of non-disclosure. Mem. in Support of Pls.' Mot. at 2. The plaintiffs used the term "selection board" throughout the motion to refer collectively to all types of selection boards. See id. at 7, 9; see also id. at 7 (citing to the complaint for allegations of impropriety in the selective early retirement process).
The Navy understood the plaintiffs to be seeking disclosure of promotion boards and selective early retirement boards. Defs.' Opp. to Pls.' Mot. at 5 n.3. Throughout the opposition, the Navy used the term "selection board" and did not distinguish among the different types of boards. See id. at 2, 6, 16, 17. The Navy argued that the district court should deny "discovery into the deliberations of Chaplain Corps promotion and selective early retirement (`SER') boards" because "10 U.S.C. § 618(f) absolutely bars disclosure of the Navy's selection board proceedings." Id. at 1. The district court also treated the plaintiffs' motion as seeking disclosure of all selection boards.CFGC, 217 F.R.D. at 254 n. 4. Without distinguishing between the various boards,see id. at 258-60, the district court granted the plaintiffs' motion, holding that "section 618(f) does not create an absolute or qualified privilege barring discovery of selection-board proceedings." Id. at 260.
On appeal, neither of the parties distinguished between the different types of selection boards. The plaintiffs referred collectively to "selection boards," seeAppellees' Br. at 37, 46, and also discussed both promotion selection boards, see id.at 40, 44, and selective early retirement boards, id. at 45, in their arguments against the existence of a statutory bar. The

plaintiffs never argued that Section 618(f) by its terms did not apply to continuation on active duty or selective early retirement boards. The Navy similarly treated the selection boards collectively, arguing on appeal that Section 618(f) barred disclosure of both promotion and selective early retirement boards. Appellants' Br. at 17, 19-21.
We are frankly a bit surprised that throughout this dispute about whether a one-sentence statutory provision barred disclosure of selection board proceedings, neither party pointed out that the statute, by its terms, applied only to certain types of selection board proceedings. This calls to mind what Judge Friendly described as1182*1182 Felix Frankfurter's "threefold imperative to law students" in his landmark statutory interpretation course: "(1) Read the statute; (2) read the statute; (3) read the statute!" Henry J. Friendly, Benchmarks 202 (1967). In any event, in reversing the district court's decision with respect to promotion selection boards, we do not decide whether proceedings of other statutory selection boards are discoverable. Neither the district court nor the parties addressed that as a distinct question, and analysis of it may turn in part on a proper understanding of Section 618(f). We accordingly vacate the district court's decision with respect to continuation on active duty and selective early retirement selection boards, and remand for further consideration. The parties should be afforded the opportunity to litigate, and the district court in the first instance to decide, whether continuation on active duty and selective early retirement board proceedings are protected, and to what extent, in light of our decision on the proper reading of Section 618(f).
IV. The Chaplains' Pendent Claims
In their brief, the Chaplains present two additional issues, arguing that the district court erred in rejecting their claims that (1) Navy chaplains should be considered clergy, not naval officers, for the purpose of evaluating their constitutional claims, and (2) allowing Navy chaplains to sit on promotion boards violates the Establishment Clause of the First Amendment. See Appellees' Br. at 46, 52-55. Recognizing that these issues are not presently appealable by themselves, the Chaplains nonetheless urge this court to exercise pendent appellate jurisdiction to review them now.
"This court does not exercise pendent appellate jurisdiction frequently or liberally."National R.R. Passenger Corp. v. ExpressTrak, 330 F.3d 523, 527 (D.C.Cir. 2003). Such jurisdiction may be appropriate only when (1) a "nonappealable order is `inextricably intertwined' with the appealable order," or (2) review of the nonappealable order is "`necessary to ensure meaningful review'" of the appealable order. Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C.Cir.1996)(quoting Swint v. Chambers County Comm'n, 514 U.S. at 51, 115 S.Ct. at 1212). No such considerations are present in this case. The Chaplains'

constitutional claims — not even presented on a cross-appeal — are not intertwined with, nor necessary to ensure meaningful review of, the statutory privilege issue that is within our jurisdiction. We accordingly decline to consider them.
* * *
We reverse the district court's decision with respect to promotion selection boards, vacate
the district court's decision with respect to continuation on active duty and selective early retirement selection boards, and remand for further proceedings consistent with this opinion. The petition for mandamus is dismissed as moot.
[1] In a related case, the Ninth Circuit summarilydismissed for lack of jurisdiction a similar appeal from an order requiring disclosure, citing Bank of America v. National Mortgage Equity Corporation,857 F.2d 1238 (9th Cir.1988). Wilkins v. United States, No. 04-55046 (9th Cir. Apr. 27, 2004) (unpublished order). That dismissal does not conflict with our finding of jurisdiction here because the case our sister circuit relied upon — Bank of America — did not cons ider whether the collateral order doctrine provided appellate juris diction. See Bank of Am erica, 857 F.2d at 1239 (determining whether court had appellate jurisdiction under an exception for third parties aggrieved by a discovery order). On the same day that it issued the order dismissing the Government's appeal, the Ninth Circuit also ordered that the Government's parallel petition for mandamus be referred to a merits panel. See United States v. Wilkins, No. 04-70709 (9th Cir. Apr. 27, 2004) (unpublished order). Disclosure in Wilkins has been stayed pending resolution of that petition.
[2] As the district court recognized, see CFGC, 217 F.R.D. at 258 n. 9, St. Regis Paper, supra, is even further afield. The provision of the Census Act at issue in that case precluded disclosure bygovernment officials of certain information; the question was whether that provision should be construed to protect private entities from turning over the same information in response to civil discovery. St. Regis Paper, 368 U.S. at 215-17, 82 S.Ct. at 293-95. The Court's statement that it should "avoid a construction that would suppress otherwise competent evidence unless the statute, strictly construed, requires such a result," id. at 218, 82 S.Ct. at 295, was made in the course of rejecting an argument for expanding the reach of a statutory privilege beyond its terms. The Court declined to do so, noting that "we cannot rewrite the Census Act." Id.
The Chaplains also seek support for their clear statement rule from Web ster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053, 100 L.Ed.2d 632 (1988) ("where Congress intends to preclude judicial review of judicial claims, its intent to do so must be clear"). Section 618(f), however, does not preclude judicial review of the Chaplains' claims, and the government has not argued that it does. As the government recognizes, "plaintiffs here remain free to litigate their discrimination claims and to support them with other evidence." Reply Br. at 4.

 
 454 F.3d 290 (2006)
CHAPLAINCY OF FULL GOSPEL CHURCHES, et al., Appellants v.
Gordon R. ENGLAND, Secretary of the U.S. Navy, et al., Appellees.
No. 05-5143, 05-5144.
United States Court of Appeals, District of Columbia Circuit.
Argued January 9, 2006. Decided July 7, 2006.
291*291 292*292 293*293 Arthur A. Schulcz, Sr. argued the cause and filed the briefs for appellants.
Robert M. Loeb, Attorney, U.S. Department of Justice, argued the cause for appellees. Wit him on the brief were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and I. Glenn Cohen, Attorney.
Before: HENDERSON, ROGERS and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge.
Appellants, current and former Navy chaplains of "non-liturgical Protestant" faiths and their endorsing agency, brought suit alleging the Navy has unconstitutionally established and maintained a religious quota system for the promotion, assignment, and retention of Navy chaplains that disadvantages chaplains of non-liturgical Protestant faiths. In the midst of discovery, Appellants moved for preliminary and structural injunctions and for partial summary judgment. The district court denied the motion in its entirety, finding, in particular, that Appellants had failed to demonstrate the irreparable injury necessary to warrant preliminary injunctive relief. We affirm the district court as to its denial of a structural injunction, and we have no jurisdiction to review its denial of partial summary judgment; however, because we conclude Appellants have satisfied the requisite showing of irreparable harm for an Establishment Clause violation, we vacate the district court's judgment denying preliminary injunctive relief and remand for the district court to proceed with the remainder of the preliminary injunction determination.

I
The United States Navy maintains a Chaplain Corps to "meet the spiritual needs of those who serve in the Navy and their families." Adair v. England, 183 F.Supp.2d 31, 35 (D.D.C.2002) (citation and internal quotation mark omitted). Chaplains serve as Naval officers and, like other military officers, both regular and reserve, receive periodic reviews by promotion selection boards that determine which officers should be recommended for promotion. Id. at 35-36; 10 U.S.C. §§ 611, 14101. Any officer a promotion selection board considers but does not recommend for promotion is deemed to have "failed of selection" (FOS) to the higher grade. 10 U.S.C. §§ 627, 14051. The military may convene a special selection board for officers who were erroneously not considered by a promotion selection board, or who were considered but did not receive lawful or proper consideration. Id. §§ 628, 14502; SECNAV Instruction 1401.1B, Special Promotion Selection Boards for Commissioned and Warrant Officers in the Navy and Marine Corps ¶ 4(b) (Dep't of the Navy Apr. 25, 1997).
Federal law mandates separation from military service based on criteria relating to age, grade, and failures of selection. In general, naval reserve officers who have not been recommended for promotion to the grade of rear admiral (lower half) must be separated from the military on the last day of the month they reach 60 years of 294*294age.[1] 10 U.S.C. § 14509. The Secretary of the Navy is afforded some flexibility to deviate from this rule, however. Provided a reserve officer in the Chaplain Corps has not twice failed to be promoted to the next higher grade, the Secretary may retain the chaplain until age 67. Id. § 14703(a)(2). Ordinarily, a second FOS makes separation mandatory, e.g., id. §§ 1450514506, but even officers who would otherwise be precluded from further service for having twice failed of selection may, "subject to the needs of the service," be considered for continuation under regulations prescribed by the Secretary of Defense, id. § 14701(a)(1); SECNAV Instruction 1920.7B, Continuation on Active Duty of Regular Commissioned Officers and Reserve Officers on the Reserve Active Status List (RASL) in the Navy and Marine Corps (Dep't of the Navy Jan. 30, 2006); DoD Directive 1320.8, Continuation of Regular Commissioned Officers on Active Duty and Reserve Commissioned Officers on the Reserve Active Status List (Dep't of Defense Oct. 21, 1996).[2] Chaplains retained under this continuation exception may also serve until age 67. SECNAV Instruction 1920.7B ¶ 8; DoD Directive 1320.8 ¶ 4.9.
The Secretary of the Navy has issued instructions describing the qualifications for eligibility as a Chaplain Corps officer. "To be eligible for appointment . . . in either the active-duty or Reserve components, or for voluntary recall from the Reserve component to the active-duty list," an applicant must, among other requirements, "be able to complete 20 years of active

commissioned service by age 60," a benchmark that may be raised to age 62 in certain instances. SECNAV Instruction 1120.4, Appointment of Regular and Reserve Officers in the Chaplain Corps of the Navy ¶ 6(b) (Dep't of the Navy May 14, 1986). Applicants who will be unable to complete 20 years of active commissioned service by age 60 must, before their appointment, acknowledge in writing that they are ineligible for appointment to regular service. Id. ¶ 6. In addition, applicants who will be unable to complete 20 years of creditable service for retirement must similarly acknowledge the same in writing. Id.
The Navy divides its chaplains into four categories according to common faith group characteristics: Catholic, liturgical Protestant, non-liturgical Protestant, and "special worship." "Liturgical Protestant" refers to Protestant denominations that trace their origins to the Reformation, retain an established liturgy in their worship services, and practice infant baptism; it includes Lutheran, Episcopal, Methodist, Presbyterian, and Congregational faiths. Adair, 183 F.Supp.2d at 36. "Nonliturgical Protestant" refers to Protestant denominations that do not have a formal liturgy or order in their worship services, that baptize only those who have reached the age of reason, and whose clergy generally do not wear religious vestments during services; it includes Baptist, Evangelical, Pentecostal, and Charismatic faiths. Id.; see also In re England, 375 F.3d 1169, 295*295 1172 (D.C.Cir.2004).[3]
Plaintiffs-Appellants are a group of current and former Navy chaplains of nonliturgical Protestant faiths and their recognized endorsing agency, the Chaplaincy of Full Gospel Churches.[4] They filed two separate suits against the Secretary of the Navy and other Navy personnel in their official capacities and the Navy itself, Appellees here. In both actions, Appellants alleged "the Navy has established, promoted, and maintained religious quotas and other discriminatory practices in the Navy Chaplain Corps in violation of the First and Fifth Amendments," In re England, 375 F.3d at 1174, and these practices work to the detriment of non-liturgical Christian chaplains. In 2000, the district court consolidated the two cases for the purpose of addressing and resolving pretrial motions. Mem. Op. Den. the Pls.' Mot. for Prelim. and Structural Inj.; Den. the Pls.' Mot. for Partial Summ. J. Without Prejudice 2 n. 2 (Feb. 7, 2005) (Mem.Op.). A prolonged series of motions and petitions followed. See, e.g., Adair v. England, 417 F.Supp.2d 1 (D.D.C.2006); Chaplaincy of Full Gospel Churches v. England, 221 F.R.D. 255 (D.D.C.2004); Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (D.D.C.2003), rev'd, In re England, 375 F.3d at 1169, cert. denied, 543 U.S. 1152, 125 S.Ct. 1343, 161 L.Ed.2d 116 (2005); Chaplaincy of Full Gospel Churches v. Johnson, 276 F.Supp.2d 82 (D.D.C.2003); Chaplaincy of Full Gospel Churches v. Johnson, 276 F.Supp.2d 79 (D.D.C.2003); Adair v. Johnson,216 F.R.D. 183 (D.D.C. 2003); Adair v. England, 217 F.Supp.2d 7 (D.D.C.2002);Adair v. England, 209 F.R.D. 5 (D.D.C.2002); Adair v. England, 209 F.R.D. 1 (D.D.C.2002); Adair v. England, 217

F.Supp.2d 1 (D.D.C.2002); Adair v. England,193 F.Supp.2d 196 (D.D.C. 2002); Adair, 183 F.Supp.2d at 31; see also Mem. Op. at 2 (describing the case's "wearisome, piecemeal litigation").
The instant appeal stems from the district court's denial of Appellants' latest motion, filed in the midst of discovery. Appellants' Interrogatory No. 9 requested a list of chaplains on active duty over age 62 and their denominations. From the Navy's response, Appellants identified fifteen Catholic reserve chaplains over age 62, fourteen of whom are lieutenants or lieutenant commanders who have twice failed of selection and yet remain on active duty. Mem. of P. & A. in Supp. of Pls.' Mot. for a Prelim. and Structural Inj. and Partial Summ. J. 8 (June 5, 2003) (Pls.' Mem.); Appellants' Br. 11. Appellants also identified seven of these FOS Catholic chaplains as age 67 or greater. Pls.' Mem. at 8.
Armed with this evidence, Appellants moved for preliminary and structural injunctions and partial summary judgment. Appellants contended the age 60 ceiling established by 10 U.S.C. § 14509 prohibits the Navy from allowing the identified reserve lieutenant and lieutenant commander chaplains over age 62 to remain on active duty.Id. Even if the chaplains remained in service past age 60 under 10 U.S.C. § 14703, Appellants argued, the Navy violated 296*296 that provision's absolute age limit of 67 by retaining seven chaplains of or over that age. Id. Appellants also maintained that none of the chaplains over age 62 possessed sufficient time in service to qualify for retirement and the resulting pension, id., and that the Navy gave those chaplains over age 67 a "4109" personnel classification, meaning "retired reservist recalled to active duty," even though none of them possessed the requisite time in service to qualify for retirement and for the Navy legally to recall them. Id. at 9.[5]
The Navy's actions, in Appellants' words, evidence a "well established practice of allowing Catholic Naval Reserve chaplains, and only Catholic chaplains," to remain on active duty beyond mandatory separation age limits, constituting "religious favoritism" in violation of the Establishment Clause. Id. at 1-2. Appellants also accused the Navy of "fraud in covering up this illegal retention" by wrongfully employing the "4109" classification with respect to Catholic chaplains over age 67. Id.at 1. The Navy's "scheme," according to Appellants, "appears on its face to have no other purpose but to allow these over-age chaplains to illegally qualify for retirement."Id. Appellants sought relief that would, among other things, "require the Navy to separate immediately those chaplains it has allowed to continue on active duty beyond age 60." Id. at 22.
The district court denied the motion in its entirety. The district court first rejected preliminary injunctive relief because Appellants failed to demonstrate any irreparable injury. Mem. Op.

at 5. In so doing, it repudiated Appellants' argument that violation of the law, including the First Amendment and, specifically, the Establishment Clause, per se constitutes irreparable harm. Id. at 6-7. The district court then denied partial summary judgment because adequate time for discovery had not passed. Id. at 8. Appellants timely appealed.
II
We begin on a brief jurisdictional note. We have jurisdiction to review the district court's denial of preliminary injunctive relief, see 28 U.S.C. § 1292(a)(1); however, as a general rule, we lack jurisdiction to hear an appeal of a district court's denial of summary judgment, partial or otherwise. E.g., Johnson v. Greater Se. Comm. Hosp. Corp., 951 F.2d 1268, 1277 (D.C.Cir.1991). Appellants offer no reasons to deviate from this principle, so we confine the remainder of our analysis to the district court's denial of the requested preliminary injunction.[6]
297*297 "The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). It is "an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion." Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir.2004). To warrant preliminary injunctive relief, the moving party must show (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction. E.g., Mova Pharm. Corp., 140 F.3d 1060, 1066 (D.C.Cir.1998) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.Cir.1995)) (internal quotation marks omitted). A district court must "balance the strengths of the requesting party's arguments in each of the four required areas." CityFed, 58 F.3d at 747. If the showing in one area is particularly strong, an injunction may issue even if the showings in other areas are rather weak.Id. Despite this flexibility, though, a movant must demonstrate "at least some injury" for a preliminary injunction to issue, id. (quoting Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C.Cir.1986)) (internal quotation marks omitted), for "the basis of injunctive relief in the federal courts has always been irreparable harm," Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959)) (brackets and internal quotation marks omitted). A movant's failure to show any irreparable harm is therefore grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit such relief. See, e.g., Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1210-11 (D.C.Cir.1989).

We review a district court's weighing of the four preliminary injunction factors and its ultimate decision to issue or deny such relief for abuse of discretion, though any legal conclusions upon which the district court relies, including whether Appellants have demonstrated irreparable injury, are reviewed de novo. Mova Pharm. Corp., 140 F.3d at 1066; Transohio Sav. Bank v. Dir., Office of Thrift Supervision, 967 F.2d 598, 614 (D.C.Cir.1992).
A
This court has set a high standard for irreparable injury. First, the injury "must be both certain and great; it must be actual and not theoretical." Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (per curiam). The moving party must show "[t]he injury complained of is of such imminence that there is a `clear and present' need for equitable relief to prevent irreparable harm." Id. (citations, brackets, and internal quotation marks omitted). Second, the injury must be beyond remediation. As we have stated:
The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary 298*298 course of litigation weighs heavily against a claim of irreparable harm.
Id. (quoting Va. Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958)) (internal quotation marks omitted).
Appellants fail to articulate a tangible injury that is either "certain and great" or irreparable. Appellants argue the Navy's allegedly unlawful practice of retaining Catholic chaplains past applicable age limits precludes non-liturgical Protestant chaplains from advancing to higher grades, since Congress and the Navy cap the number of officers per grade. See 10 U.S.C. §§ 523(a)(2), 12011(a)(2); Decl. of Captain Lyman M. Smith 2 (noting that Congress provides an annual authorization of officers by grade, which the Navy further breaks down by community, for example, Chaplain Corps). Such an injury is far too speculative to warrant preliminary injunctive relief. At most, the Navy's purported practice reduces Appellants'opportunities for promotion, which are themselves dependent upon the number of Chaplain Corps vacancies Congress and the Navy authorize each year. Appellants perhaps inadvertently reveal the hypothetical nature of their tangible injury when they refer to "the ultimate relief which would eventually follow resolution of these cases,e.g., possible promotions." Appellants' Reply Br. 20 (emphasis added). This statement

underscores the absence in this proceeding of any discrete injury that is "of such imminence" that equitable relief is urgently necessary.
In addition, Appellants' asserted tangible injury is redressable. The Navy is authorized to convene special selection boards to review a previous non-promotion. 10 U.S.C. §§ 628, 14502; SECNAV Instruction 1401.1B. Within the reserves, the Navy may convene s uch a board if an "officer or former officer" failed to receive a promotion selection board's recommendation because, among other reasons, the initial board acted "contrary to law" or its action "involved [a] material error of fact." 10 U.S.C. § 14502(b)(1)(A); SECNAV Instruction 1401.1B ¶ 8(a)(1)-(2). If the special selection board recommends the promotion of a current officer, that officer "shall, as soon as practicable, be appointed to the next higher grade" and "shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that officer's grade, and the same position on the active duty list [or] the reserve active status list . . . that officer would have had" if the original promotion selection board had correctly recommended the officer for promotion. 10 U.S.C. § 14502(e)(1)-(2); SECNAV Instruction 1401.B ¶ 14. Former officers who prevail before the special selection board are entitled to revision of their military record "to correct an error or remove an injustice resulting from not being selected for promotion" by the initial board. 10 U.S.C. § 14502(e)(3). Monetary remedies are available to such officers "if, as a result of correcting a record, [an] amount is found to be due." Id. § 1552; see also, e.g., Marsh v. Johnson, 263 F.Supp.2d 49, 51 (D.D.C.2003) (describing correction of record and back payment award to retired officer after special selection board's reversal of previous failure to recommend for promotion). These measures ensure that, should the courts eventually conclude the Navy has an unlawful practice of retaining Catholic chaplains past applicable age limits to the detriment of non-liturgical Protestant chaplains, "adequate compensatory or other corrective relief" is available to Appellants, belying their claims of irreparable tangible harm at this point.
B
Having failed to assert a tangible injury that constitutes irreparable harm, 299*299Appellants are left to argue that the Navy's alleged violation of the Establishment Clause per se constitutes irreparable harm. The district court rejected this proposition, but we disagree.
Appellants' argument that they would suffer irreparable harm without a preliminary injunction rests on a statement by a three-Justice plurality in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion), that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable

injury." Id. at 373., 96 S.Ct. 2673 Because Appellants claim Appellees' practice of retaining overage Catholic chaplains constitutes an impermissible denominational preference in violation of the Establishment Clause, they urge us to apply the language of the Elrod plurality on its face and conclude that Appellants have demonstrated irreparable injury — specifically, the harm that flows from the "forbidden message" of marginalization Appellees' actions send to Appellants. Appellants' Br. 20. They note several of our sister circuits have employed Elrod to find irreparable harm where moving parties alleged a violation of the Establishment Clause — in other words, the precise context in which we find ourselves. See ACLU of Ky. v. McCreary County, 354 F.3d 438, 445 (6th Cir.2003), aff'd on other grounds,___ U.S. ___, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005); Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir.1996); Parents' Ass'n of P.S. 16 v. Quinones,803 F.2d 1235, 1242 (2d Cir.1986).
Appellees, in contrast, maintain Elrod is inapposite because that case involved political speech and expression, a context far removed from the Establishment Clause allegations Appellants advance. They also assert the rationale underlying theElrod plurality's statement was a concern that without preliminary injunctive relief, the First Amendment rights to speech and expression would be "chilled" during the pendency of litigation, a harm that could not be redressed after final judgment. Appellees maintain Appellants have not identified any constitutionally protected behavior that may be chilled in the absence of a preliminary injunction; accordingly, they claim, the concerns motivating the Elrod plurality are not present here and Appellants' mere allegations, without more, do not support a finding of irreparable injury.
At first blush, Appellees appear to have the better of this debate. Elrod involved political speech and freedom of expression. There, Republican patronage employees of a county sheriff's department brought suit against, among others, a newly elected county sheriff who was a Democrat. Elrod, 427 U.S. at 350, 96 S.Ct. 2673 (plurality opinion). At the time, it was common for an incoming sheriff of a different political party to replace non-civil-service employees with members of his own party when the existing employees lacked or failed to obtain requisite support from, or failed to affiliate with, the new sheriff's political party. Id. at 351, 96 S.Ct. 2673. The Elrodplaintiffs alleged they had been discharged, or threatened with discharge, solely for these reasons and claimed a violation of, inter alia, the First Amendment. Id. at 350,96 S.Ct. 2673. Upon review, a plurality consisting of Justices Brennan, White, and Marshall, with Justice Brennan writing, held, after lengthy discussion, that patronage dismissals are unconstitutional under the First Amendment and that plaintiffs had therefore stated a claim. Id. at 373, 96 S.Ct. 2673. The plurality then briefly turned to whether a preliminary injunction was warranted, a determination that hinged upon whether

plaintiffs had made out an irreparable injury. 300*300 Concluding they had, the plurality stated:
It is clear . . . that First Amendment interests were either threatened or in fact being impaired at the time relief was sought. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. See New York Times Co. v. United States,403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). Since such injury was both threatened and occurring at the time of [plaintiffs'] motion and since [plaintiffs] sufficiently demonstrated a probability of success on the merits, the Court of Appeals might properly have held that the District Court abused its discretion in denying preliminary injunctive relief.
Id. at 373-74, 96 S.Ct. 2673. In a footnote to this passage, the plurality noted, "The timeliness of political speech is particularly important." Id. at 374 n. 29, 96 S.Ct. 2673.[7]
The facts of Elrod, which involved dismissals from government jobs for failure to ascribe to or gain the approval of a political party; the plurality's citation to New York Times, a landmark free expression case; and the footnote stressing the "timeliness of political speech" make evident that the pertinent Elrod language on which Appellants rely is directed toward circumstances concerning freedom of expression. Indeed, in almost all of the many subsequent cases in which our sister circuits have invoked the Elrod plurality's statement, the operative First Amendment liberties allegedly violated were variants of expressive liberties, such as the rights to speak, associate, petition, or exercise one's religion. See, e.g., Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir.2005); Tucker v. City of Fairfield, 398 F.3d 457, 464 (6th Cir.2005); Joelner v. Village of Washington Park, 378 F.3d 613, 620 (7th Cir.2004); Newsom v. Albemarle County Sch. Bd., 354 F.3d 249, 261 (4th Cir.2003); Brown v. Cal. Dep't of Transp., 321 F.3d 1217, 1226 (9th Cir.2003);Tenafly Eruv Ass'n v. Borough of Tenafly, 309 F.3d 144, 178 (3d Cir.2002); Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 970 (8th Cir.1999); Bery v. City of New York, 97 F.3d 689, 693-94 (2d Cir.1996); Miss. Women's Med. Clinic v. McMillan, 866 F.2d 788, 795 (5th Cir. 1989); Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 4 (1st Cir.1987); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983). The number of cases applying Elrod to alleged Establishment Clause violations is comparatively meager, see McCreary Cty., 354 F.3d at 445;Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 930 (6th Cir.2002) (per curiam); Ingebretsen, 88 F.3d at 280; Quinones, 803 F.2d at 1242, and, furthermore, each of these decisions cites Elrod only in passing, devoid of any analysis of its particular context. The single court that focused on Elrod's facts recognized the statement at issue here "was made . . . in the context of free speech" and rejected applying it axiomatically to Establishment Clause claims. ACLU of Ill.

v. City of St. Charles, 794 F.2d 265, 274 (7th Cir.1986). Therefore, there is superficial merit to Appellees' argument 301*301 that Elrod ought to play no role in the proceeding before us, which turns entirely on establishment claims.
In addition, Appellees accurately note that this court has construed Elrod to require movants to do more than merely allege a violation of freedom of expression in order to satisfy the irreparable injury prong of the preliminary injunction frame-work. Rather, moving parties must also establish they are or will be engaging in constitutionally protected behavior to demonstrate that the allegedly impermissible government action would chill allowable individual conduct. Thus, for example, in National Treasury Employees Union v. United States, 927 F.2d 1253 (D.C.Cir.1991), we refused to find irreparable harm where federal employees sought a preliminary injunction after alleging that ethics laws prohibiting them from making appearances, delivering speeches, and writing articles for compensation violated their First Amendment rights. Id. We noted that while "the loss of First Amendment freedoms, for even minimal periods of time, may constitute irreparable injury," id. at 1254 (quoting Elrod, 427 U.S. at 373, 96 S.Ct. 2673 (plurality opinion)) (brackets and internal quotation marks omitted), movants must show that their "First Amendment interests are either threatened or in fact being impaired at the time relief is sought,"id. at 1254-55 (quoting Wagner v. Taylor, 836 F.2d 566, 577 n. 76 (D.C.Cir.1987)(quoting Elrod, 427 U.S. at 373, 96 S.Ct. 2673 (plurality opinion))) (brackets omitted). We concluded that because the record did not suggest the plaintiffs would "cease speaking or writing" before the district court resolved their claims, irreparable harm would not follow and preliminary relief could not issue. Id. at 1255. Several other courts have adopted this approach, which emphasizes that where it is not clear that a particular statute, policy, or practice will have any actual adverse effect on protected First Amendment liberties, the moving party must demonstrate some likelihood of a chilling effect on their rights. As the Second Circuit has stated:
Where a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed. . . . In contrast, in instances where a plaintiff alleges injury from a rule or regulation that may only potentially affect speech, the plaintiff must establish a causal link between the injunction sought and the alleged injury, that is, the plaintiff must demonstrate that the injunction will prevent the feared deprivation of free speech rights.
Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 349-50 (2d Cir.2003); see also Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir.1989) ("[T]he assertion of First Amendment rights does not automatically require a finding of irreparable injury. . . . Rather the plaintiffs must show `a chilling effect on free expression.'" (quotingDombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)));Am. Postal Workers Union v. U.S. Postal

Serv., 766 F.2d 715, 722 (2d Cir.1985); cf.Laird v. Tatum, 408 U.S. 1, 13-14 & n. 7, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). Accordingly, Appellees are correct when they assert that in this court, as in several others, "there is no per se rule that a violation of freedom of expression automaticallyconstitutes irreparable harm." Appellees' Br. 23.
But the crucial distinction Appellees fail to recognize, and which ultimately undermines their position, is that freedom of expression is not the operative First Amendment right at issue in this case. It is not the freedom to speak, to associate, to petition, to exercise one's religion, or 302*302 any other liberty that protects an individual's freedom to engage in a particular activity. Rather, the pertinent liberty here is protection against government imposition of a state religion or religious preference. This protection, unlike other First Amendment rights that are variants of the freedom to express oneself, requires no affirmative conduct on the part of the individual before its guarantees are implicated by government action. As a matter of semantics, an act chills the freedom of an individual to do something; it is incongruous to link the concept of "chilling" with an individual's freedom not to have something done to him. Accordingly, while a particular government action may chill one's propensity to speak, associate, exercise one's faith, or otherwise engage in constitutionally protected individual conduct, where, as here, the claim asserts government imposition of a religious preference, the "chilling effect" rationale is both inapposite and superfluous.
Because of this critical difference, the twin concerns animating Appellees' argument are much less determinative than they initially appear. First, while we have required individuals seeking a preliminary injunction on First Amendment grounds to demonstrate a likelihood that they are engaging or would engage in the protected activity the governmental action is purportedly infringing, we have done so only in the context of free expression, where the relevant constitutional protection is not implicated without some corresponding individual conduct that faces a danger of chilling. But the Establishment Clause is implicated as soon as the government engages in impermissible action. Where, as here, the charge is one of official preference of one religion over another, such governmental endorsement "sends a message to nonadherents [of the favored denomination] that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Lynch v. Donnelly, 465 U.S. 668, 688, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring). This harm, to which Appellants repeatedly refer throughout their briefs,see, e.g., Appellants' Reply Br. 9 ("Here the message is the Navy prefers Catholics."), occurs merely by virtue of the government's purportedly unconstitutional policy or practice establishing a religion, without any concomitant protected conduct on the movants' part. Accordingly, Appellees' reliance on National Treasury Employees Union and similar cases is misplaced in proceedings concerning alleged Establishment Clause violations.

Second, while Elrod arose in the context of political speech, and its operative language has been employed almost exclusively with respect to restrictions on free speech, free exercise of religion, or other variants of freedom of expression, we think it is also applicable to purported Establishment Clause violations. We reach this conclusion not simply by axiomatically applying Elrod's admonition that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," as other courts have done and Appellants urge. Rather, we emphasize the language surrounding this maxim and note its validity with respect to Establishment Clause claims. The Elrod plurality noted that the plaintiffs' "First Amendment interests were either threatened or in fact being impaired at the time" they sought preliminary injunctive relief, and that because their injury was "both threatened and occurring" and they showed a probability of success on the merits, a preliminary injunction could follow. Elrod, 427 U.S. at 373, 96 S.Ct. 2673 (plurality opinion). 303*303 Because, when an Establishment Clause violation is alleged, infringement occurs the moment the government action takes place — without any corresponding individual conduct — then to the extent that the government action violates the Establishment Clause, First Amendment interests are "threatened or in fact being impaired." Of course, this raises the question of the extent to which the disputed government action actually violates the Establishment Clause — but this inquiry is addressed by another prong of the preliminary injunction calculation, the likelihood of the movant's success on the merits. Within the irreparable harm analysis itself — which assumes, without deciding, that the movant has demonstrated a likelihood that the nonmovant's conduct violates the law — we examine only whether that violation, if true, inflicts irremediable injury. And because of the inchoate, one-way nature of Establishment Clause violations, which inflict an "erosion of religious liberties [that] cannot be deterred by awarding damages to the victims of such erosion," City of St. Charles, 794 F.2d at 275, we are able to conclude that where a movant alleges a violation of the Establishment Clause, this is sufficient, without more, to satisfy the irreparable harm prong for purposes of the preliminary injunction determination.
Appellees expressly disclaim any contention that "Establishment Clause violations can never constitute irreparable harm sufficient to warrant a preliminary injunction." Appellees' Br. 30. They merely "urge the Court to reject a per se rule that alleging an Establishment Clause violation, without anything more, necessarily constitutes irreparable harm." Id. But this proposition fails for two reasons. First, we are unable to identify the pivotal "anything more" that movants alleging an Establishment Clause violation could offer in order to demonstrate irreparable harm. In cases involving purported violations of freedom of speech, association, religious exercise, or other expressive First Amendment liberties, we are able to fashion, and have fashioned, such a line-drawing element: movants must demonstrate a likelihood that they will engage in the constitutionally protected expressive

conduct. But as noted, this notion is not translatable to the First Amendment freedom from government establishment of religion. The harm inflicted by religious establishment is selfexecuting and requires no attendant conduct on the part of the individual. It is unclear what, exactly, movants alleging an Establishment Clause violation could show to differentiate between establishments that inflict irreparable harm and those that do not.
Second, and more significant, Appellees' proposed approach would foreclose allpossibility of preliminary injunctive relief in Establishment Clause cases based on intangible harm, even those involving the most manifest violations of the Establishment Clause. Consider, for example, a state legislature's decision, with gubernatorial approval, to erect an enormous cross in front of the statehouse, on public property, using public funds. The legislative history unambiguously reveals an intent to raise the cross as a symbol of Christianity and to spread Christian values among the polity. An offended resident would have taxpayer standing to seek removal of the cross, cf. Flast v. Cohen, 392 U.S. 83, 105-06, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), and would handily win a permanent injunction to that effect. Under Appellees' theory, however, she could not possibly obtain a preliminary injunction ordering removal of the cross during pendency of the litigation, despite the certainty with which she would ultimately prevail on the merits of her claim and the irreparability of the 304*304harm inflicted upon her in the meantime. Appellees would have the taxpayer allege something more than a patent violation of the Establishment Clause; yet we cannot imagine what that could be. The result would be an erosion of the very principles of religious freedom the Establishment Clause serves to safeguard. See City of St. Charles, 794 F.2d at 275 ("If preliminary injunctions were not available in cases brought to enforce the establishment clause, government might be able to erode the values that the clause protects with a flood of temporary or intermittent infringements."). We reject this position and instead hold that a party alleging a violation of the Establishment Clause per se satisfies the irreparable injury requirement of the preliminary injunction calculus.[8]
We stress that a finding of irreparable injury is but one of four elements that comprise the preliminary injunction framework. The mere allegation that the government is violating the Establishment Clause may suffice to satisfy the irreparable harm prong, but a preliminary injunction will not issue unless the moving party also shows, on the same facts, a substantial likelihood of success on the merits, that the injunction would not substantially injure other interested parties, and that the public interest would be furthered by the injunction. It is these other prongs that will ultimately determine meritorious motions for preliminary injunctions in the face of purported Establishment Clause violations. Unsupported or undeveloped allegations of government establishment, for example, while sufficient to make out irreparable injury, will not withstand scrutiny concerning the movant's likelihood of success on the merits, thereby defeating a request for a preliminary injunction.

Likewise, demands for preliminary relief that inflict untoward detriment on persons not party to the case will meet a similar fate, as will motions that do not further the public interest. Thus we do not believe that our decision today in any way lessens the burden for parties seeking preliminary injunctive relief against purported Establishment Clause violations. It merely focuses greater attention on the three other factors that indisputably enter into the preliminary injunction determination.
Appellants allege that Appellees' practice of retaining overage Catholic chaplains constitutes a denominational preference in violation of the Establishment Clause. If true, which we assume is the case for purposes of the irreparable injury prong, the government has, without anything more, infringed upon Appellants' freedom from government establishment of religion, constituting irreparable harm. The district court committed error in finding otherwise.
III
Having reached a conclusion contrary to the district court with respect to Appellants' irreparable injury, we must decide whether to proceed with the remainder of the preliminary injunction determination, as Appellants urge, or remand the case to the district court, as Appellees insist. We believe the proper course of action at this point is to remand to the district court.
When denying a preliminary injunction, a district court "shall . . . set forth the findings of fact and conclusions of law which constitute the grounds of its action." Fed.R.Civ.P. 52(a). "It is of the highest importance to a proper review of the action of a court in granting or refusing a preliminary injunction that there 305*305 should be fair compliance with Rule 52(a)." Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316, 60 S.Ct. 517, 84 L.Ed. 774 (1940). The district court here confined its analysis to determining whether irreparable harm would visit Appellants without interim relief. It expressly withheld consideration of the three other factors that enter into the preliminary injunction calculus. See Mem. Op. at 5 & n. 2. Accordingly, the "conclusions of law" as to these other factors that Rule 52(a) requires are not present. See Fair Hous. in Huntington Comm. Inc. v. Town of Huntington, 316 F.3d 357, 364 (2d Cir.2003); Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 423 (4th Cir.1999) ("Requiring trial courts to explain their injunction orders serves at least two important purposes. First, it allows the parties to better understand the reasons for the court's actions. Second, a written explanation of the district court's reasoning permits an appellate court to meaningfully review that decision."); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2576 (2d ed. 1995) ("If the appellate court finds that it cannot review the case meaningfully without findings and conclusions, it may remand so

that findings can be made."). We are therefore disposed to remand to the district court to pick up where it left off.
We are aware that because our review of the legal findings supporting a district court's preliminary injunction determination is de novo, the absence of legal findings does not necessarily preclude us from undertaking appellate review. See LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150, 1155 (9th Cir.2006). But our review of the district court's balancing of the four preliminary injunction factors and ultimate decision to grant or deny such relief is for abuse of discretion, and without any conclusions of law as to the three remaining factors, we are unable to determine whether the district court properly carried out this function. See Hoechst Diafoil, 174 F.3d at 423. A remand would also effect greater development of the remaining preliminary injunction factors, particularly Appellants' likelihood of success on the merits, which we believe advisable. Indeed, in explicitly choosing not to address the three other components, the district court noted that if later required to turn to them, it would "likely benefit" from further elaboration of certain arguments raised before it concerning the merits of Appellants' claim. Mem. Op. at 5 n. 2. Both precedent and prudence, therefore, counsel a remand to the district court so that a "full understanding of the issues" may be attained. Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 400 (6th Cir. 1997); cf. New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 13 (1st Cir.2002) ("Injunctive relief is, by its very nature, factsensitive and case-specific. For that reason, the court of appeals ordinarily will not uphold a preliminary injunction on a ground that was not fully addressed by the trial court.").
IV
By alleging that Appellees are engaging in conduct that violates the Establishment Clause, Appellants have satisfied the irreparable injury prong of the preliminary injunction framework. We therefore reverse the district court on this point, vacate its denial of preliminary injunctive relief, and remand for the court to carry out the remainder of the preliminary injunction analysis. We affirm the district court's denial of structural injunctive relief, and we have no jurisdiction to rule on its denial of partial summary judgment.
So ordered.
[1] As pertinent to this appeal, the grades of lieutenant and lieutenant commander are both below the grade of rear admiral (lower half). 10 U.S.C. § 5501.
[2] Prior to 2003, both regular and reserve officers who twice failed of selection were considered for continuation bya selection board convened expresslyfor that purpose. 10 U.S.C. §§ 637(a)(1), 14701(a)(1) (2000); id. §§ 611(b), 14101(b)(1). In 2003, in an effort to "streamline[ ]" the process for continuation of reserve officers, Congress repealed the selection board requirement as to reserve officers. National Defense Authorization Act for Fiscal Year 2004, Pub.L. No. 108-136, § 511, 117 Stat. 1392, 1459.

[3] "Special worship" refers to faith groups, both Christian and non -Christian, that have "unique or special needs for their worship and religious practices"; it includes Jewish, Christian Science, Seventh -Day Adventist, Mormon, Buddhist, Hindu, Moslem, Jehovah's Witness, and Unitarian faiths.Adair, 183 F.Supp.2d at 36. It is not a relevant category to the instant proceeding.
[4] To be eligible for appointment in the Chaplain Corps, an applicant must receive the endorsement of a recognized ecclesiastical endorsing agency. SECNAV Instruction 1120.4, at ¶ 7(b).
[5] Appellants also claimed that even if the seven "4109" chaplains over age 67 met the requirements for retirement and thus could legally be recalled to active duty, the duration of their recalls exceeded the 180 -daytime limit set by Navy regulations. Pls.' Mem. at 9; SECNAV Instruction 1811.4E, Voluntary Recall/Retention of Retired Officers to/on Active Duty ¶ 4(c) (Dep't of the Navy June 24, 1993).
[6] Appellants also moved for a structural injunction, a remedy that has been defined as an "injunction seeking to effect the reform of a social institution." Owen M. Fiss, The Civil Rights Injunction 9 (1978). The purpose of a structural injunction is "to remodel an existing social or political institution to bring it into conformitywith constitutional demands; e.g., restructuring a school system to facilitate equal educational opportunities." Lampkin v. District of Columbia, 886 F.Supp. 56, 62 (D.D.C.1995). Structural injunctions are "typically used as public law remedies for serious and pervasive rights violations." Id. The district court never specificallyaddressed Appellants' request for a structural injunction, concluding onlythat it would not grant mandatoryinjunctive relief since Appellants failed the less burdensome test for preliminaryinjunctive relief. See Mem. Op. at 5. On appeal, Appellants' 62-page brief devotes all of one paragraph to arguing for this extraordinary form of relief, citing two entirely unrelated cases. In kind, we devote all of one paragraph to concluding that Appellants' request for a structural injunction is without merit.
[7] Justice Stewart, joined by Justice Blackmun, wrote a one-paragraph opinion concurring in the judgment; three Justices dissented, and one took no part in the case. Because the plurality's discussion of irreparable harm did not enjoy support from a majorityof Justices, it is not binding precedent but a "considered opinion" that "should b e the point of reference for further discussion of the issue." King v. Palmer, 950 F.2d 771, 782 (D.C.Cir.1991) (en banc) (quoting Texas v. Brown, 460 U.S. 730, 737, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (pluralityopinion)) (internal quotation marks omitted).
[8] This conclusion presupposes, of course, that the party has standing to allege such a violation.

 
 Case: 1:06-cv-1696 As of: 02/14/2013 07:43 AM EST 1 of 7
CLOSED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:06−cv−01696−RMU

GIBSON et al v. UNITED STATES NAVY et al Assigned to: Judge Ricardo M. Urbina Cases: 1:06−cv−02102−RMU
1:07−mc−00269−GK Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 09/29/2006 Date Terminated: 06/28/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

DAVID L GIBSON

represented by Arthur A. Schulcz , Sr. THE LAW OFFICE OF ARTHUR A. SCHULCZ, SR. 2521 Drexel Street Vienna, VA 22180−6907 (703) 645−4010 Fax: (703) 645−4011 Email: arthur.schulcz@vacoxmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff RICHARD L. ARNOLD

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff RAY A. BAILEY

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff RICK P. BRADLEY

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GEORGE P. BYRUM

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ANDREW CALHOUN

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff TIMOTHY J. DEMY

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:06-cv-1696 As of: 02/14/2013 07:43 AM EST 2 of 7

Plaintiff PATRICK T. DONEY

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JOSEPH E. DUFOUR

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff FLOYD C. ELLISON

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ALAN GARNER

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JOHN GORDY

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff WILLIAM A. HATCH, JR.

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GARY HEINKE

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ROBERT L. HENDRICKS

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff FRANK JOHNSON

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff LAURENCE W. JONES

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:06-cv-1696 As of: 02/14/2013 07:43 AM EST 3 of 7

Plaintiff SAMUEL DAVID KIRK
Plaintiff FRANK KLAPACH
Plaintiff THOMAS G. KLAPPERT
Plaintiff JAN C. KOHLMANN
Plaintiff ALLEN L. LANCASTER
Plaintiff JAMES LOOBY
Plaintiff MANUEL MAK
Plaintiff WALKER E. MARSH, JR.
Plaintiff DAVID MITCHELL
Plaintiff JAIRO MARINO

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY

Case: 1:06-cv-1696 As of: 02/14/2013 07:43 AM EST 4 of 7

ATTORNEY TO BE NOTICED

Plaintiff DAN NICHOLS

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff EDITH RENE PORTER−STEWART

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JAMES V. PRINCE

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JAVIER ROMAN

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff LLOYD SCOTT

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GARY PAUL STEWART

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff FRED A. THOMPSON, JR.

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GLENN THYRION

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ARMANDO TORRALVA

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff THOMAS DANIEL TOSTENSON

represented by Arthur A. Schulcz , Sr. (See above for address)

Case: 1:06-cv-1696 As of: 02/14/2013 07:43 AM EST 5 of 7

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JAMES TWAMLEY

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff THOMAS R. WATSON

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff WILSON W. WINEMAN

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff CHRIS XENAKIS

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ASSOCIATED GOSPEL CHURCHES

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ALL PLAINTIFFS

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ALL GIBSON PLAINTIFFS

represented by Arthur A. Schulcz , Sr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant UNITED STATES NAVY

represented by Daniel Edward Bensing U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave N.W. Suite 6114 Washington, DC 20530 (202) 305−0693 Fax: (202) 616−8460 Email: daniel.bensing@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:06-cv-1696 As of: 02/14/2013 07:43 AM EST 6 of 7

Defendant
SECRETARY OF DEPARTMENT OF NAVY

represented by Daniel Edward Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/29/2006
10/10/2006 10/23/2006 11/02/2006 11/03/2006 11/07/2006
02/14/2007 03/01/2007
03/15/2007 03/16/2007

# Docket Text
1 CASE TRANSFERRED IN from the U.S. District Court for the Northern District of Florida, Pensacola Division. Case Number 06−187filed by GEORGE P. BYRUM, ANDREW CALHOUN, TIMOTHY J. DEMY, PATRICK T. DONEY, JOSEPH E. DUFOUR, FLOYD C. ELLISON, ALAN GARNER, JOHN GORDY, WILLIAM A. HATCH, JR, GARY HEINKE, DAVID L GIBSON, ROBERT L. HENDRICKS, FRANK JOHNSON, LAURENCE W. JONES, SAMUEL DAVID KIRK, FRANK KLAPACH, THOMAS G. KLAPPERT, JAN C. KOHLMANN, ALLEN L. LANCASTER, JAMES LOOBY, MANUEL MAK, RICHARD L. ARNOLD, WALKER E. MARSH, JR, DAVID MITCHELL, JAIRO MARINO, DAN NICHOLS, EDITH RENE PORTER−STEWART, JAMES V. PRINCE, JAVIER ROMAN, LLOYD SCOTT, GARY PAUL STEWART, FRED A. THOMPSON, JR, RAY A. BAILEY, GLENN THYRION, ARMANDO TORRALVA, THOMAS DANIEL TOSTENSON, JAMES TWAMLEY, THOMAS R. WATSON, WILSON W. WINEMAN, CHRIS XENAKIS, ASSOCIATED GOSPEL CHURCHES, RICK P. BRADLEY. (Attachments).(tg, ) (Entered: 10/02/2006)
2 NOTICE of Appearance by Arthur A. Schulcz, Sr on behalf of ALL PLAINTIFFS (Schulcz, Arthur) (Entered: 10/10/2006)
3 Receipt on 10/23/06 of a copy of the Complaint. (tg, ) (Entered: 10/24/2006)
Case Reassigned to Judge Ricardo M. Urbina. Judge Gladys Kessler no longer assigned to the case. (lc, ) (Entered: 11/03/2006)
4 MOTION to Stay by UNITED STATES NAVY, SECRETARY OF THE NAVY. (Bensing, Daniel) (Entered: 11/03/2006)
MINUTE ORDER granting 4 the parties' joint motion to stay. This case is hereby STAYED pending the filing and resolution of (1) a motion by the defendants to consolidate this case with CFGC v. Winter, 99cv2945, and Adair v. Winter, 00cv566, both assigned to this District Judge, and (2) the plaintiffs' petition for Supreme Court review of the Order of the U.S. District Court for the Northern District of Florida transferring this case to the U.S. District Court for the District of Columbia. Signed by Judge Ricardo M. Urbina on 11/7/06. (djr) (Entered: 11/07/2006)
5 Unopposed MOTION for Order Lifting Stay To Fie Motion To Transfer by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 02/14/2007)
MINUTE ORDER granting 5 Motion to lift stay. It is ORDERED that the current stay is lifted for the limited purpose of allowing the plaintiffs to file a motion to transfer the case to the Northern District of Florida. This case remains stayed for all other matters, as set forth in the Court's Minute Order dated November 7, 2006. Signed by Judge Ricardo M. Urbina on 3/1/07. (djr) Modified on 3/1/2007 (jwd, ). (Entered: 03/01/2007)
6 MOTION to Transfer Case by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Text of Proposed Order)(Schulcz, Arthur) (Entered: 03/15/2007)
7 ERRATA to Motion's Ehibit 1 by ALL PLAINTIFFS 6 MOTION to Transfer Case filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1)(Schulcz, Arthur) (Entered: 03/16/2007)

Case: 1:06-cv-1696 As of: 02/14/2013 07:43 AM EST 7 of 7

03/29/2007 04/05/2007 04/13/2007 06/18/2007
07/03/2008 07/03/2008 08/18/2008

8 Memorandum in opposition to re 6 MOTION to Transfer Case filed by UNITED STATES NAVY, SECRETARY OF THE NAVY. (Attachments: # 1 Court Order)(Bensing, Daniel) (Entered: 03/29/2007)
9 REPLY to opposition to motion re 6 MOTION to Transfer Case filed by ALL PLAINTIFFS. (Schulcz, Arthur) (Entered: 04/05/2007)
10 STANDING ORDER Signed by Judge Ricardo M. Urbina on April 13, 2007. Read this Standing Order Carefully, it will govern this case. Failure to follow the Standing Order will result in sanctions.(jwd) (Entered: 04/13/2007)
11 MEMORANDUM ORDER denying Motion to Transfer Case 6 ; granting the defendants' motion to consolidate; denying all pending motions without prejudice; directing that this case be incorporated into a new miscellaneous case number 07−269 and all further pleadings be filed in the miscellaneous case; parties may refile motions in Miscellaneous No 07mc269;administratively closing the civil actions pending further orderof the Court. Signed by Judge Ricardo M. Urbina on 06/18/07. (jeb, ) (Entered: 06/18/2007)
12 Joint MOTION to Lift Stay and Status Report by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Schulcz, Arthur) (Entered: 07/03/2008)
MINUTE ORDER granting 12 Motion to Lift Stay.. Signed by Judge Ricardo M. Urbina on 7/3/08. (lcrmu1, ) (Entered: 07/03/2008)
13 FIRST AMENDED COMPLAINT against ALL GIBSON PLAINTIFFS filed by ALL GIBSON PLAINTIFFS.(jf) (See Docket Entry 22 in 07mc269 to view document). (Entered: 09/26/2008)

 
 Case: 3:06-cv-00187-MCR-MD As of: 10/24/2013 07:29 PM CDT 1 of 12
U.S. District Court Northern District of Florida (Pensacola) CIVIL DOCKET FOR CASE #: 3:06−cv−00187−MCR−MD

CLOSED

GIBSON et al v THE UNITED STATES NAVY et al Assigned to: CHIEF JUDGE M CASEY RODGERS Referred to: MAGISTRATE JUDGE MILES DAVIS Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 04/28/2006 Date Terminated: 08/17/2006 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

DAVID L GIBSON

represented by ARTHUR ANDREW SCHULCZ , SR ARTHUR SCHULCZ SR PA − VIENNA VA 2521 DREXEL ST VIENNA, VA 22180 703−645−4010 Fax: 703−645−4011 Email: arthur.schulcz@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff RICHARD L ARNOLD

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff RAY A BAILEY

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff RICK P BRADLEY

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GEORGE P BYRUM

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ANDREW CALHOUN

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff TIMOTHY J DEMY

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-00187-MCR-MD As of: 10/24/2013 07:29 PM CDT 2 of 12

Plaintiff PATRICK T DONEY

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JOSEPH E DUFOUR

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff FLOYD C ELLISON

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ALAN GARNER

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JOHN GORDY

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff WILLIAM A HATCH, JR

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GARY HEINKE

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ROBERT L HENDRICKS

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff FRANK JOHNSON

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff LAURENCE W JONES

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-00187-MCR-MD As of: 10/24/2013 07:29 PM CDT 3 of 12

Plaintiff SAMUEL DAVID KIRK
Plaintiff FRANK S KLAPACH
Plaintiff THOMAS G KLAPPERT
Plaintiff JAN C KOHLMANN
Plaintiff ALLEN L LANCASTER
Plaintiff JAMES LOOBY
Plaintiff MANUEL MAK
Plaintiff WALKER E MARSH, JR
Plaintiff DAVID MITCHELL
Plaintiff JAIRO MARINO

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY

Case: 3:06-cv-00187-MCR-MD As of: 10/24/2013 07:29 PM CDT 4 of 12

ATTORNEY TO BE NOTICED

Plaintiff DAN NICHOLS

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff EDITH RENE PORTER−STEWART

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JAMES V PRINCE

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JAVIER ROMAN

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff LLOYD SCOTT

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GARY PAUL STEWART

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff FRED A THOMPSON, JR

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff GLENN THYRION

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ARMANDO TORRALVA

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff THOMAS DANIEL TOSTENSON

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JAMES TWAMLEY

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff THOMAS R WATSON

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff WILSON W WINEMAN

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff CHRIS XENAKIS

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
THE ASSOCIATED GOSPEL CHURCHES

represented by ARTHUR ANDREW SCHULCZ , SR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant THE UNITED STATES NAVY
Defendant THE SECRETARY OF THE NAVY

represented by DANIEL BENSING DEPARTMENT OF JUSTICE − BEN FRANKLIN − WASHINGTON DC BEN FRANKLIN STATION WASHINGTON, DC 20044 202−305−0693 Fax: 202−616−8460 Email: Daniel.Bensing@USDOJ.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN W BEARD US ATTORNEY − PENSACOLA FL NORTHERN DISTRICT OF FLORIDA 21 E GARDEN ST STE 400 PENSACOLA, FL 32502−5675 850/444−4000 Fax: 434−9050 Email: benjamin.beard@usdoj.gov ATTORNEY TO BE NOTICED
represented by

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DANIEL BENSING (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN W BEARD (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/28/2006 04/28/2006 04/28/2006 05/01/2006 05/15/2006
05/19/2006 06/01/2006

# Docket Text
1 COMPLAINT (pages 1−36) against THE UNITED STATES NAVY, ET AL (Filing fee $350, Receipt #300/113076), filed by DAVID L GIBSON, ET AL (Attachments: # 1 Supplement (pages 37−72), # 2 Supplement (pages 73−108), and # 3 Supplement (pages 109−144))(lcu, Pensacola) (Entered: 05/01/2006)
2 CIVIL COVER SHEET. (lcu, Pensacola) (Entered: 05/01/2006)
3 Corporate Disclosure Statement by THE ASSOCIATED GOSPEL CHURCHES. (lcu, Pensacola) (Entered: 05/01/2006)
4 Summons Issued as to THE UNITED STATES NAVY, THE SECRETARY OF THE NAVY, THE HONORABLE ALBERTO GONZALES, and THE HONORABLE GREGORY R. MILLER and returned to counsel. (lcu, Pensacola) (Entered: 05/01/2006)
5 ATTORNEY TIME RECORDS by GEORGE P BYRUM, ANDREW CALHOUN, TIMOTHY J DEMY, PATRICK T DONEY, JOSEPH E DUFOUR, FLOYD C ELLISON, ALAN GARNER, JOHN GORDY, WILLIAM A HATCH, JR, DAVID L GIBSON, GARY HEINKE, ROBERT L HENDRICKS, FRANK JOHNSON, LAURENCE W JONES, SAMUEL DAVID KIRK, FRANK S KLAPACH, THOMAS G KLAPPERT, JAN C KOHLMANN, ALLEN L LANCASTER, JAMES LOOBY, RICHARD L ARNOLD, MANUEL MAK, WALKER E MARSH, JR, DAVID MITCHELL, JAIRO MARINO, DAN NICHOLS, EDITH RENE PORTER−STEWART, JAMES V PRINCE, JAVIER ROMAN, LLOYD SCOTT, GARY PAUL STEWART, RAY A BAILEY, FRED A THOMPSON, JR, GLENN THYRION, ARMANDO TORRALVA, THOMAS DANIEL TOSTENSON, JAMES TWAMLEY, THOMAS R WATSON, WILSON W WINEMAN, CHRIS XENAKIS, THE ASSOCIATED GOSPEL CHURCHES, RICK P BRADLEY. (SCHULCZ, ARTHUR) (Entered: 05/15/2006)
6 DOCKET ANNOTATION BY COURT: Re 5 Attorney Time Record, filed by plaintiffs. Counsel of record is advised that his electronic signature is missing. Future documents filed electronically need to have an electronic signature. (tnc, Pensacola) (Entered: 05/19/2006)
7 MOTION for Partial (Declaratory And Or Partial)* Summary Judgment... by GEORGE P BYRUM, ANDREW CALHOUN, TIMOTHY J DEMY, PATRICK T DONEY, JOSEPH E DUFOUR, FLOYD C ELLISON, ALAN GARNER, JOHN GORDY, WILLIAM A HATCH, JR, DAVID L GIBSON, GARY HEINKE, ROBERT L HENDRICKS, FRANK JOHNSON, LAURENCE W JONES, SAMUEL DAVID KIRK, FRANK S KLAPACH, THOMAS G KLAPPERT, JAN C KOHLMANN, ALLEN L LANCASTER, JAMES LOOBY, RICHARD L ARNOLD, MANUEL MAK, WALKER E MARSH, JR, DAVID MITCHELL, JAIRO MARINO, DAN NICHOLS, EDITH RENE PORTER−STEWART, JAMES V PRINCE, JAVIER ROMAN, LLOYD SCOTT, GARY PAUL STEWART, RAY A BAILEY, FRED A THOMPSON, JR, GLENN THYRION, ARMANDO TORRALVA, THOMAS DANIEL TOSTENSON, JAMES TWAMLEY, THOMAS R WATSON, WILSON W WINEMAN, CHRIS XENAKIS, THE ASSOCIATED GOSPEL CHURCHES, RICK P BRADLEY. (Internal deadline for referral to judge if response not filed earlier: 6/19/2006) (Attachments: #(1) Exhibit Statement of Material FActs, #(2) Exhibit Notice as to Filing of Exhibits) (SCHULCZ, ARTHUR) *Modified on 6/2/2006 to reflect correct title of pleading (cbj, Pensacola). (Entered: 06/01/2006)

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06/02/2006

8 DOCKET ANNOTATION BY COURT: Re 7 MOTION for Partial (Declaratory and or Partial) Summary Judgment... filed by plaintiffs −

06/02/2006 06/05/2006 06/05/2006 06/05/2006 06/05/2006 06/05/2006 06/06/2006 06/06/2006

(UNSCANNED)* EXHIBITS received, placed on shelf in green file jacket *(SEE doc.7 attachment #2) (cbj, Pensacola) (Entered: 06/02/2006)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Rodgers notified that action is needed Re: 7 MOTION for Partial (Declaratory and or Partial) Summary Judgment... (w/memorandum, statement of facts, and exhibits) (cbj, Pensacola) (Entered: 06/02/2006)
9 NOTICE of Appearance by BENJAMIN W BEARD on behalf of THE UNITED STATES NAVY, THE SECRETARY OF THE NAVY (BEARD, BENJAMIN) (Entered: 06/05/2006)
10 NOTICE of Appearance of DANIEL BENSING by BENJAMIN W BEARD on behalf of THE UNITED STATES NAVY, THE SECRETARY OF THE NAVY (BEARD, BENJAMIN) Modified on 6/26/2006 (tnc, Pensacola). (Entered: 06/05/2006)
11 ORDER −DENIED without prejudice 7 Motion for Partial Declaratory and or Partial Summary Judgment to refile after defendant appears . Signed by Judge M CASEY RODGERS. (tnc, Pensacola) (Entered: 06/05/2006)
12 MOTION to Transfer Case to U.S. District Court for the District of Columbia by THE UNITED STATES NAVY, THE SECRETARY OF THE NAVY. (Internal deadline for referral to judge if response not filed earlier: 6/23/2006) (BEARD, BENJAMIN) (Entered: 06/05/2006)
13 MEMORANDUM in Support re 12 MOTION to Transfer Case to U.S. District Court for the District of Columbia by THE UNITED STATES NAVY, THE SECRETARY OF THE NAVY. (Attachments: # 1 Exhibit)(BEARD, BENJAMIN) (Entered: 06/05/2006)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Rodgers notified that action is needed Re: 12 MOTION to Transfer Case to U.S. District Court for the District of Columbia (tnc, Pensacola) (Entered: 06/06/2006)
14 DOCKET ANNOTATION BY COURT: Re 13 Memorandum in Support filed by THE UNITED STATES NAVY, THE SECRETARY OF THE NAVY.

Counsel that posted this document is reminded that the NEF (notice of electronic filing) should be attached to the front of the exhibits which are submitted to the court in a hard copy.

06/08/2006 06/08/2006

(tnc, Pensacola) (Entered: 06/06/2006)
15 ORDER OF DEFICIENCY, in re 12 MOTION to Transfer Case to U.S. District Court for the District of Columbia filed by THE UNITED STATES NAVY and THE SECRETARY OF THE NAVY. The document shall remain in the electronic file, but the court will not consider it until you have corrected the above deficiency through the filing of a corrected document. The document is denied without prejudice with leave given to refile after correction. Signed by Judge M CASEY RODGERS on 6/8/06. (lcu, Pensacola) (Entered: 06/08/2006)
16 AMENDED MOTION to Transfer Case to U.S. District Court for the District of Columbia by THE UNITED STATES NAVY, THE SECRETARY OF THE NAVY. (Internal deadline for referral to judge if response not filed earlier: 6/26/2006) (BEARD, BENJAMIN)

NOTE: Certificate of Counsel located on page 15 of 17 Memorandum in Support

06/08/2006

(Entered: 06/08/2006)
17 MEMORANDUM in Support re 16 Amended MOTION to Transfer Case to U.S. District Court for the District of Columbia by THE UNITED STATES NAVY,

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06/15/2006
06/22/2006
06/23/2006 07/06/2006 07/06/2006 07/07/2006

THE SECRETARY OF THE NAVY. (Attachments: # 1 Exhibit)(BEARD, BENJAMIN) (Entered: 06/08/2006)
18 ATTORNEY TIME RECORDS by GEORGE P BYRUM, ANDREW CALHOUN, TIMOTHY J DEMY, PATRICK T DONEY, JOSEPH E DUFOUR, FLOYD C ELLISON, ALAN GARNER, JOHN GORDY, WILLIAM A HATCH, JR, DAVID L GIBSON, GARY HEINKE, ROBERT L HENDRICKS, FRANK JOHNSON, LAURENCE W JONES, SAMUEL DAVID KIRK, FRANK S KLAPACH, THOMAS G KLAPPERT, JAN C KOHLMANN, ALLEN L LANCASTER, JAMES LOOBY, RICHARD L ARNOLD, MANUEL MAK, WALKER E MARSH, JR, DAVID MITCHELL, JAIRO MARINO, DAN NICHOLS, EDITH RENE PORTER−STEWART, JAMES V PRINCE, JAVIER ROMAN, LLOYD SCOTT, GARY PAUL STEWART, RAY A BAILEY, FRED A THOMPSON, JR, GLENN THYRION, ARMANDO TORRALVA, THOMAS DANIEL TOSTENSON, JAMES TWAMLEY, THOMAS R WATSON, WILSON W WINEMAN, CHRIS XENAKIS, THE ASSOCIATED GOSPEL CHURCHES, RICK P BRADLEY. (SCHULCZ, ARTHUR) (Entered: 06/15/2006)
19 MEMORANDUM in Opposition re 16 Amended MOTION to Transfer Case to U.S. District Court for the District of Columbia filed by GEORGE P BYRUM, ANDREW CALHOUN, TIMOTHY J DEMY, PATRICK T DONEY, JOSEPH E DUFOUR, FLOYD C ELLISON, ALAN GARNER, JOHN GORDY, WILLIAM A HATCH, JR, DAVID L GIBSON, GARY HEINKE, ROBERT L HENDRICKS, FRANK JOHNSON, LAURENCE W JONES, SAMUEL DAVID KIRK, FRANK S KLAPACH, THOMAS G KLAPPERT, JAN C KOHLMANN, ALLEN L LANCASTER, JAMES LOOBY, RICHARD L ARNOLD, MANUEL MAK, WALKER E MARSH, JR, DAVID MITCHELL, JAIRO MARINO, DAN NICHOLS, EDITH RENE PORTER−STEWART, JAMES V PRINCE, JAVIER ROMAN, LLOYD SCOTT, GARY PAUL STEWART, RAY A BAILEY, FRED A THOMPSON, JR, GLENN THYRION, ARMANDO TORRALVA, THOMAS DANIEL TOSTENSON, JAMES TWAMLEY, THOMAS R WATSON, WILSON W WINEMAN, CHRIS XENAKIS, THE ASSOCIATED GOSPEL CHURCHES, RICK P BRADLEY. (Attachments: # 1 Exhibit Exhibit 1, Adair Plaintiffs' Motion# 2 Exhibit Exhibit 2, Stewart Declaration# 3 Exhibit Exhibit 3, Kitchen Declaration# 4 Exhibit Exhibit 4, Ellison Declaration# 5 Exhibit Exhibit 5, Adair slip opinion)(SCHULCZ, ARTHUR) (Entered: 06/22/2006)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Rodgers notified that action is needed Re: 19 Memorandum in Opposition to Motion, 12 MOTION to Transfer Case to U.S. District Court for the District of Columbia, 13 Memorandum in Support. (tnc, Pensacola) (Entered: 06/23/2006)
20 TERMINATED, by clerk, See doc.22* MOTION For Leave To File Reply Brief To Plaintiff's Opposition To The Defendant's Motion To Transfer re 19 Memorandum in Opposition to Motion,,,, by THE UNITED STATES NAVY, THE SECRETARY OF THE NAVY. (BEARD, BENJAMIN) *Modified on 7/7/2006 to reflect that clerk has terminated this document due to the re−filing of the motion using proper Event Selection (cbj, Pensacola). (Entered: 07/06/2006)
21 RE−FILED USING PROPER EVENT SELECTION,See doc.23)* −MEMORANDUM in Support re 16 Amended MOTION to Transfer Case to U.S. District Court for the District of Columbia filed by THE UNITED STATES NAVY, THE SECRETARY OF THE NAVY. (BEARD, BENJAMIN) *Modified on 7/7/2006 to reflect the re−filing of document using proper Event Selection (cbj, Pensacola). (Entered: 07/06/2006)
22 MOTION for Leave to File Reply Brief To The Plaintiff's Opposition To The Defendant's Motion To Transfer by THE UNITED STATES NAVY, THE SECRETARY OF THE NAVY. (BEARD, BENJAMIN) Modified on 7/7/2006 (cbj, Pensacola).
NOTE: This motion replaces improperly posted motion (doc.20) (Entered: 07/07/2006)

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07/07/2006 07/07/2006 07/10/2006
07/11/2006 07/11/2006 07/12/2006 07/17/2006
07/19/2006 07/19/2006

23 REPLY to Response to Motion (entitled "Reply Memorandum In Support Of Defendant's Motion To Transfer")* re 19 Pltf's Memorandum in Opposition to Defendant's 16 MOTION To Transfer filed by THE UNITED STATES NAVY, THE SECRETARY OF THE NAVY. (BEARD, BENJAMIN) *Modified on 7/7/2006 to reflect correct title of pleading, and to correct document relationships by removing incorrect link and creating correct links to previously filed related documents. (cbj, Pensacola). (Entered: 07/07/2006)
Set Deadline for response to 22 Motion for Leave to File Reply Brief To The Plaintiff's Opposition To The Defendant's Motion To Transfer − (Internal deadline for referral to judge if response not filed earlier: 7/25/2006) (cbj, Pensacola) (Entered: 07/07/2006)
24 MEMORANDUM in Opposition re 22 MOTION for Leave to File Reply Brief To The Plaintiff's Opposition To The Defendant's Motion To Transfer filed by GEORGE P BYRUM, ANDREW CALHOUN, TIMOTHY J DEMY, PATRICK T DONEY, JOSEPH E DUFOUR, FLOYD C ELLISON, ALAN GARNER, JOHN GORDY, WILLIAM A HATCH, JR, DAVID L GIBSON, GARY HEINKE, ROBERT L HENDRICKS, FRANK JOHNSON, LAURENCE W JONES, SAMUEL DAVID KIRK, FRANK S KLAPACH, THOMAS G KLAPPERT, JAN C KOHLMANN, ALLEN L LANCASTER, JAMES LOOBY, RICHARD L ARNOLD, MANUEL MAK, WALKER E MARSH, JR, DAVID MITCHELL, JAIRO MARINO, DAN NICHOLS, EDITH RENE PORTER−STEWART, JAMES V PRINCE, JAVIER ROMAN, LLOYD SCOTT, GARY PAUL STEWART, RAY A BAILEY, FRED A THOMPSON, JR, GLENN THYRION, ARMANDO TORRALVA, THOMAS DANIEL TOSTENSON, JAMES TWAMLEY, THOMAS R WATSON, WILSON W WINEMAN, CHRIS XENAKIS, THE ASSOCIATED GOSPEL CHURCHES, RICK P BRADLEY. (SCHULCZ, ARTHUR) (Entered: 07/10/2006)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Rodgers notified that action is needed Re: 22 MOTION for Leave to File Reply Brief 23 Reply to Response to Motion, 24 Memorandum in Opposition to Motion. (tnc, Pensacola) (Entered: 07/11/2006)
25 ORDER −GRANTED 22 Motion for Leave to File reply brief . Signed by Judge M CASEY RODGERS. (tnc, Pensacola) (Entered: 07/11/2006)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Rodgers notified that action is needed Re: 16 Amended MOTION to Transfer Case to U.S. District Court for the District of Columbia, 19 Memorandum in Opposition to Motion, and 23 Reply to Response to Motion. (tnc, Pensacola) (Entered: 07/12/2006)
26 ATTORNEY TIME RECORDS by GEORGE P BYRUM, ANDREW CALHOUN, TIMOTHY J DEMY, PATRICK T DONEY, JOSEPH E DUFOUR, FLOYD C ELLISON, ALAN GARNER, JOHN GORDY, WILLIAM A HATCH, JR, DAVID L GIBSON, GARY HEINKE, ROBERT L HENDRICKS, FRANK JOHNSON, LAURENCE W JONES, SAMUEL DAVID KIRK, FRANK S KLAPACH, THOMAS G KLAPPERT, JAN C KOHLMANN, ALLEN L LANCASTER, JAMES LOOBY, RICHARD L ARNOLD, MANUEL MAK, WALKER E MARSH, JR, DAVID MITCHELL, JAIRO MARINO, DAN NICHOLS, EDITH RENE PORTER−STEWART, JAMES V PRINCE, JAVIER ROMAN, LLOYD SCOTT, GARY PAUL STEWART, RAY A BAILEY, FRED A THOMPSON, JR, GLENN THYRION, ARMANDO TORRALVA, THOMAS DANIEL TOSTENSON, JAMES TWAMLEY, THOMAS R WATSON, WILSON W WINEMAN, CHRIS XENAKIS, THE ASSOCIATED GOSPEL CHURCHES, RICK P BRADLEY. (SCHULCZ, ARTHUR) (Entered: 07/17/2006)
27 MOTION to Extend Time by THE UNITED STATES NAVY, THE SECRETARY OF THE NAVY. (BENSING, DANIEL) (Entered: 07/19/2006)
28 Consent MOTION for Extension of Time to File Class Certification by GEORGE P BYRUM, ANDREW CALHOUN, TIMOTHY J DEMY, PATRICK T DONEY, JOSEPH E DUFOUR, FLOYD C ELLISON, ALAN GARNER, JOHN GORDY, WILLIAM A HATCH, JR, DAVID L GIBSON, GARY HEINKE, ROBERT L HENDRICKS, FRANK JOHNSON, LAURENCE W JONES, SAMUEL DAVID KIRK, FRANK S KLAPACH, THOMAS G KLAPPERT, JAN C KOHLMANN,

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07/20/2006 07/20/2006 07/27/2006
08/01/2006 08/15/2006
08/17/2006 08/17/2006 08/18/2006

ALLEN L LANCASTER, JAMES LOOBY, RICHARD L ARNOLD, MANUEL MAK, WALKER E MARSH, JR, DAVID MITCHELL, JAIRO MARINO, DAN NICHOLS, EDITH RENE PORTER−STEWART, JAMES V PRINCE, JAVIER ROMAN, LLOYD SCOTT, GARY PAUL STEWART, RAY A BAILEY, FRED A THOMPSON, JR, GLENN THYRION, ARMANDO TORRALVA, THOMAS DANIEL TOSTENSON, JAMES TWAMLEY, THOMAS R WATSON, WILSON W WINEMAN, CHRIS XENAKIS, THE ASSOCIATED GOSPEL CHURCHES, RICK P BRADLEY. (SCHULCZ, ARTHUR) (Entered: 07/19/2006)
29 DOCKET ANNOTATION BY COURT: Re 28 Consent MOTION for Extension of Time to File Class Certification filed by plaintiffs, and 27 MOTION to Extend Time filed by defendants. Counsel that posted these documents are advised that proposed orders do not get attached to the electronically filed document. Counsel should e−mail the proposed order directly to the Judge's chambers. E−mail addresses can be located on our website. (tnc, Pensacola) (Entered: 07/20/2006)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Rodgers notified that action is needed Re: 28 Consent MOTION for Extension of Time to File Class Certification, 27 MOTION to Extend Time (tnc, Pensacola) (Entered: 07/20/2006)
30 ORDER −GRANTED 28 Motion for Extension of Time to File their Class Certification Motion, and it is ORDERED that the time period of Local Rule 23.1(B) for Plaintiffs to seek class certification is hereby suspended until such time as the Court rules on Defendants' motion to transfer the caseunder 28 U.S.C. §1404(a), and it is further ORDERED, that if the Court denies the Defendants Motion to Transfer, Plaintiffs shall have 30 days in which to file their motion for class certification. Signed by Judge M CASEY RODGERS. (tnc, Pensacola) (Entered: 07/27/2006)
31 ORDER on 27 Motion to Extend Time. Defendants shall have until 30 days after the Court enters a ruling on defendants' Motion to Transfer within which to answer or otherwise respond to plaintiffs' complaint . Signed by Judge M CASEY RODGERS. (tnc, Pensacola) (Entered: 08/02/2006)
32 ATTORNEY TIME RECORDS by GEORGE P BYRUM, ANDREW CALHOUN, TIMOTHY J DEMY, PATRICK T DONEY, JOSEPH E DUFOUR, FLOYD C ELLISON, ALAN GARNER, JOHN GORDY, WILLIAM A HATCH, JR, DAVID L GIBSON, GARY HEINKE, ROBERT L HENDRICKS, FRANK JOHNSON, LAURENCE W JONES, SAMUEL DAVID KIRK, FRANK S KLAPACH, THOMAS G KLAPPERT, JAN C KOHLMANN, ALLEN L LANCASTER, JAMES LOOBY, RICHARD L ARNOLD, MANUEL MAK, WALKER E MARSH, JR, DAVID MITCHELL, JAIRO MARINO, DAN NICHOLS, EDITH RENE PORTER−STEWART, JAMES V PRINCE, JAVIER ROMAN, LLOYD SCOTT, GARY PAUL STEWART, RAY A BAILEY, FRED A THOMPSON, JR, GLENN THYRION, ARMANDO TORRALVA, THOMAS DANIEL TOSTENSON, JAMES TWAMLEY, THOMAS R WATSON, WILSON W WINEMAN, CHRIS XENAKIS, THE ASSOCIATED GOSPEL CHURCHES, RICK P BRADLEY. (SCHULCZ, ARTHUR) (Entered: 08/15/2006)
33 ORDER granting 16 Motion to Transfer Case. The clerk shall transfer this case to the United States District Court for the District of Columbia. Signed by Judge M CASEY RODGERS. (lcu, Pensacola) (Entered: 08/17/2006)
34 Interdistrict Transfer to the District of Columbia. (lcu, Pensacola) (Entered: 08/17/2006)
35 MOTION to Stay TRANSFER OF CASE PENDING PETITION FOR MANDAMUS by GEORGE P BYRUM, ANDREW CALHOUN, TIMOTHY J DEMY, PATRICK T DONEY, JOSEPH E DUFOUR, FLOYD C ELLISON, ALAN GARNER, JOHN GORDY, WILLIAM A HATCH, JR, DAVID L GIBSON, GARY HEINKE, ROBERT L HENDRICKS, FRANK JOHNSON, LAURENCE W JONES, SAMUEL DAVID KIRK, FRANK S KLAPACH, THOMAS G KLAPPERT, JAN C KOHLMANN, ALLEN L LANCASTER, JAMES LOOBY, RICHARD L ARNOLD, MANUEL MAK, WALKER E MARSH, JR, DAVID MITCHELL, JAIRO MARINO, DAN NICHOLS, EDITH RENE PORTER−STEWART, JAMES V PRINCE, JAVIER ROMAN, LLOYD SCOTT, GARY PAUL STEWART, RAY A BAILEY, FRED A THOMPSON, JR, GLENN

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08/18/2006 08/20/2006
08/21/2006
08/21/2006 08/21/2006 09/06/2006 09/07/2006 09/15/2006

THYRION, ARMANDO TORRALVA, THOMAS DANIEL TOSTENSON, JAMES TWAMLEY, THOMAS R WATSON, WILSON W WINEMAN, CHRIS XENAKIS, THE ASSOCIATED GOSPEL CHURCHES, RICK P BRADLEY. (SCHULCZ, ARTHUR) (Entered: 08/18/2006)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge M. CASEY RODGERS notified that action is needed Re: 35 MOTION to Stay TRANSFER OF CASE PENDING PETITION FOR MANDAMUS (lcu, Pensacola) (Entered: 08/18/2006)
36 RULE 7.1(B) Conference statement re 35 MOTION to Stay ( Titled as a supplement to motion for stay), filed by GEORGE P BYRUM, ANDREW CALHOUN, TIMOTHY J DEMY, PATRICK T DONEY, JOSEPH E DUFOUR, FLOYD C ELLISON, ALAN GARNER, JOHN GORDY, WILLIAM A HATCH, JR, DAVID L GIBSON, GARY HEINKE, ROBERT L HENDRICKS, FRANK JOHNSON, LAURENCE W JONES, SAMUEL DAVID KIRK, FRANK S KLAPACH, THOMAS G KLAPPERT, JAN C KOHLMANN, ALLEN L LANCASTER, JAMES LOOBY, RICHARD L ARNOLD, MANUEL MAK, WALKER E MARSH, JR, DAVID MITCHELL, JAIRO MARINO, DAN NICHOLS, EDITH RENE PORTER−STEWART, JAMES V PRINCE, JAVIER ROMAN, LLOYD SCOTT, GARY PAUL STEWART, RAY A BAILEY, FRED A THOMPSON, JR, GLENN THYRION, ARMANDO TORRALVA, THOMAS DANIEL TOSTENSON, JAMES TWAMLEY, THOMAS R WATSON, WILSON W WINEMAN, CHRIS XENAKIS, THE ASSOCIATED GOSPEL CHURCHES, RICK P BRADLEY. (SCHULCZ, ARTHUR) Modified on 8/21/2006 (tnc, Pensacola). (Entered: 08/20/2006)
37 DOCKET ANNOTATION BY COURT: Re 36 MOTION to Stay Supplement filed by plaintiffs. Counsel that posted this document is advised the incorrect event code was used. This document is NOT a motion and ONLY motions should be posted by using motion events. This document is the Rule 7.1(B) conference statement re: doc #35 Motion to stay. This event is located under "Other Filings""Other Documents" and is called "Rule 7.1(B) Conference Statement". When this event is used it will allow you to link to the motion it's in support of. Clerk has corrected the docket text, terminated this document as a pending motion and added link to original motion doc #35. Counsel does not need to file anything futher to correct this document. (tnc, Pensacola) (Entered: 08/21/2006)
38 ORDER −GRANTED 35 Motion to Stay through 9/5/2006 in order to permit plaintiffs to file a petition for writ of mandamus in the Eleventh Circuit Court of Appeals. The clerk shall hold and shall not mail the notice of transfer out of district, or any other document or paper associated with this case, pending further instruction by the court. The docket shall reflect that the matter presently is STAYED . Signed by Judge M CASEY RODGERS. (tnc, Pensacola) (Entered: 08/21/2006)
Set Deadline re: order entry doc #38. Deadline for clerk to check status of stay by 9/5/2006. (tnc, Pensacola) (Entered: 08/21/2006)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Rodgers notified that action is needed Re: 38 Order on Motion to Stay until 9/5/2006. (tnc, Pensacola) (Entered: 09/06/2006)
39 ORDER − In the instant case, the court will stay the proceedings pending the Eleventh Circuit's disposition of plaintiffs' petition. The clerk is therefore instructed to hold and not mail the notice of transfer out of district, or any other document or paper associated with this case, pending further instruction by this court or the Eleventh Circuit. The docket shall reflect that the matter presently is STAYED. Signed by Judge M CASEY RODGERS on 9/7/2006. (tnc, Pensacola) (Entered: 09/07/2006)
40 ATTORNEY TIME RECORDS by GEORGE P BYRUM, ANDREW CALHOUN, TIMOTHY J DEMY, PATRICK T DONEY, JOSEPH E DUFOUR, FLOYD C ELLISON, ALAN GARNER, JOHN GORDY, WILLIAM A HATCH, JR, DAVID L GIBSON, GARY HEINKE, ROBERT L HENDRICKS, FRANK JOHNSON, LAURENCE W JONES, SAMUEL DAVID KIRK, FRANK S KLAPACH, THOMAS G KLAPPERT, JAN C KOHLMANN, ALLEN L

Case: 3:06-cv-00187-MCR-MD As of: 10/24/2013 07:29 PM CDT 12 of 12

09/18/2006 09/20/2006 09/20/2006
10/04/2006

LANCASTER, JAMES LOOBY, RICHARD L ARNOLD, MANUEL MAK, WALKER E MARSH, JR, DAVID MITCHELL, JAIRO MARINO, DAN NICHOLS, EDITH RENE PORTER−STEWART, JAMES V PRINCE, JAVIER ROMAN, LLOYD SCOTT, GARY PAUL STEWART, RAY A BAILEY, FRED A THOMPSON, JR, GLENN THYRION, ARMANDO TORRALVA, THOMAS DANIEL TOSTENSON, JAMES TWAMLEY, THOMAS R WATSON, WILSON W WINEMAN, CHRIS XENAKIS, THE ASSOCIATED GOSPEL CHURCHES, RICK P BRADLEY. (SCHULCZ, ARTHUR) (Entered: 09/15/2006)
41 USCA ORDER No further action will be taken in this matter. The petition for writ of mandamus is DENIED. No. 06−14719−I (djb, Pensacola) (Entered: 09/19/2006)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Rodgers notified that action is needed Re: 41 USCA Order (tnc, Pensacola) (Entered: 09/20/2006)
42 ORDER LIFTING STAY − Pursuant to doc #41, the USCA denied plaintiff's petition for writ of mandamus. Therefore, the court's stay of the instant case is lifted. The clerk shall proceed with mailing the notice of transfer to the USDC for the District of Columbia. Signed by Judge M CASEY RODGERS on 9/20/2006. (tnc, Pensacola) (Entered: 09/20/2006)
43 ACKNOWLEDGEMENT from USDC/District of Columbia re 34 Case Transferred Out to Another District. (tnc, Pensacola) (Entered: 10/04/2006)

 
 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

v.

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. Depa rtment 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 K AVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

2

Opinion for the Court filed by WILLIAMS.

Senior Circuit Judge

WILLIAMS, Senior Circuit Judge: Plaintiffs, whom we’ll call simply the chap lains, are a group of current and former officers in the Navy Chaplain Corps who identify them selves as non-liturgical Christians, plus two chaplain-endorsing agencies. They sued in district court, claim ing (among other things) that several of the Navy’s policies for prom oting chaplains prefer Catholics and litu rgical Protestants at the expense of various non-liturgi cal denominations. The basic argument is that the policies am ount to disparate treatm ent of the non-liturgical chaplains, violating the equal protection component of the Fifth Am endment and the Establishm ent 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). T he judgment now on review is that of the district court denying plai ntiffs’ 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 th e 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 m embers. 10 U.S.C. § 612(a)(1). Except in certain circumstances not at issue here, at least one member of a selec tion board f or a com petitive category—

3
here, the C haplain Corps—must be f rom that com petitive category. 10 U.S.C. § 612(a)(2)(A). Selection boards for chaplains before fiscal year 2003 consisted of five or m ore members, at least one of whom was not a chaplain. Under a change in Navy regulation, boa rds for fiscal year 2003 and thereafter are com posed of se ven 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 Genera l report cited by plaintiffs , “sleeves” hide the board m embers’ hands as they depres s 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 low er score are treated as deserving no further consideration. Candidates who fall between the two are re-ev aluated for the rem aining available promotions.
The chaplains asked the district court to en join three current Navy selection board policies—(1) staffing the sevenmember selection boards with two chaplains, (2) enab ling members to keep their votes secr et 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 dispara te treatment of the non-liturgical candidates. Plaintiffs’ (July 22, 2011) Motion for a Prelim inary 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 shar es a religious denomination with one of the chaplains on the se lection board, or with the Chie f of Chaplains. The bottom line is an advantage in prom otion

4

rates for Catholics and liturgical Protestants over nonliturgical Christians. The chaplains posit that the small board size, combined with s ecret votes, enables each board ’s chaplains to ensure tha t a par ticular candidate will no t be promoted, thus increasing the odds for their preferred (and discriminatory) results.

Pending resolution of their summ ary judgment motion,

the chaplains asked the district court for a prelim

inary

injunction halting the challenged policies. Th e district court

denied the request, bu t we vacated the denial and rem anded

for the district court to c larify its reasoning on the chaplains’

likelihood of success on the m erits; we were unsure whether

the district court viewe d the insuf ficiency of the chaplain s’

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 unlike ly to succ eed on the m erits of either

claim because the statis tics they of fered failed to show an y

discriminatory intent behind th e challenged policies or th e

resulting outcomes. In re Navy Chaplaincy, 928 F. Supp. 2d

at 36-37.

The chaplains appeal to us again, claim ing that the court erred in requiring a showing of in tent to prove either an equal protection or establishment clause violation. We find that the chaplains’ equal p rotection 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 claim ed). As to the Establishment Clause, the chaplains have not show n a likelihood of success under any test that they have asked the court to apply. We therefore affirm the district c ourt’s denial of the prelim inary injunction.

5

* * *

In order to determine whether to issue a prelim inary

injunction, the district court applies four familiar criteria: (1)

likelihood of success on the merits; (2) irreparable injury; (3)

lack of substantial injury to o ther parties; and (4) furthering

the public interest. Chaplaincy of Full Gospel Churches, 454

F.3d at 297. W e have already found an absence of any error

in the d istrict court’s analysis of the last three factors, and

have made clear that the only unresolved issue is whether the

chaplains have shown a likeli hood of success o n the m erits.

In re Navy Chaplaincy , 697 F.3d at 1179. The chaplains in

effect argue that the distri ct court used im proper legal

standards on that issue. But the record and the district court’s

findings allow us to r esolve the question of likelihood of

success on the m erits 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 prelim

inary

injunction relies are reviewable de novo).

Equal protection. The chaplains argue that the th ree challenged policies result in disp arate treatment of nonliturgical chaplains. But none of the challenged practices on its face p refers any religious deno mination. The regulation behind the practice of staffi ng boards with tw o chaplains explicitly requires denominational neutrality. “Chaplain Corps board members shall be nominated without regard to religious affiliation.” SE CNAVINST 1401.3A Encl. (1), ¶ 1.c.(1)(f) (Dec. 20, 2005). T hus, even if one of the chaplains always serves as boa rd president (as the chaplains allege), the board president, necessarily a board member, must be a person chosen for the board w ithout regard to religious affiliation. Finally, the practice of secret voting is neutral o n its face. All three pol icies together, then, are facially neu tral with respect to denomination.

6
The chaplains nonetheless clai m that the policies either were adopted with discrim inatory intent or have been applied in such a m anner as t o favor denom inations other than the non-liturgical ones. As the district court found, the chaplains have presented no evidence of di scriminatory 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 de terminative.” 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 prom otion rates for officers of the sam e denomination as the Chief of Chaplains (the difference between a 73.3% promotion rate for candidates of different denom inations and an 83.3% rate for candidates of the sam e denomination). In re Navy Chaplaincy , 928 F. Supp. 2d at 37.
There is so me internal contr adiction in th e chaplains’ position on these figures. Their br ief states th at they cov er promotions in the period 2003-2012, when the current procedures were in place (Appell ants’ Br. at 15), but it cites Joint Appendix (“J.A.”) 1107, an affidavit that situates the data in 1981-2000, before the pr oportion of chaplains on the selection boards was decrease d. Giving the chaplains the benefit of the doubt, we assum e 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 co rrectly noted that the dispar ity between 73.3% and 83.3% does not remotely approach th e stark character of the disparities in Gomillion or Yick Wo. Id.

7
For reinforcement, plaintiffs cite their expert’s opinion that this disparity is statistically significant. The reco rd does not explain the reasoning behind the choice of one set of statistical tests for significan ce over another (e.g., a “sim ple binomial” test versus a standard test of the dif ferences in proportions), or demonstrate the actual calculations. See, e.g., Appellants’ Br. at 15. Bu t assuming arguendo that the methodology for determ ining statistical significance is reasonable, the finding does little for our ana lysis. “Correlation is not causation.” Tagatz v. Marquette Univ. , 861 F.2d 1040, 1044 (7th Cir. 1988). Statistical significance, assuming it has been shown, indi cates only a low probability for one possible cause of th e alleged disparities—random chance. Th e chaplains have m ade no attem pt to contro l for potential confounding factors, such as prom otion ratings, education, or tim e in service. (That statem ent must be qualified by recognition that tim e in service is broadly reflected in occasional references to whether the candid ates were “in zone” (i.e., were within a group of a predeterm ined number of the m ost senior o fficers 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 candidate s, and of in zone and above zone candidates); J.A. 1289-92 (Navy em ployee affidavit describing the zone com positions).) 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 cha plains’ equal protecti on attack on the Navy’s specific policies could succeed only with an argum ent that the policie s lack a rational basis. See Washington v. Davis, 426 U.S. 229, 242 (1976); United States v. Thomps on, 27 F.3d 671, 678 (D.C. Cir. 1994). The chaplains attem pt no

8
such argument. So we agree with the district court th at they have not shown the requisite likelihood of success.
Establishment. The chaplains say that under Larson v. Valente, 456 U.S. 228 (1982), we m ust subject the challenged selection methods to strict sc rutiny on the ground that they “grant[] a denom inational preference,” id. at 246, or, failing that, find that they run afoul of Lemon v. Kurtzman, 403 U.S. 602 (1971), notably the elem ent of Lemon now generally described as the “endorsement” test.
The chaplains’ proposed analytical sequence matches the structure laid down by the Suprem e Court for m easures 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 am ong religions. If no such facial p reference exists, we proceed to apply the custom ary 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 m uster under the Lemon test, laws and government practices involving religion m ust: (1) have a secular legislative purpose; (2) h ave a princ ipal or pr imary effect that neither advan ces nor inhibits religion; and (3) not result in ex cessive entanglement with re ligion or religiou s 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 natu rally do not challeng e the chaplaincy program as a whole; the Second Circuit has found it compatible with the Establishm ent Clause, in a n opinion that does not precisely track Lemon. Katcoff v. Mar sh, 755 F.2d

9
223 (2d Cir. 1985). Nor do the chaplains claim that the first or third element of Lemon cuts against th e disputed selection procedures.
Rather they claim that the cha llenged policies have the “effect” of advancing particular denominations, which at least in this context entails applicati on of the “endorsem ent” test. Bonham, 989 F.2d at 1245. That in turn takes us to the question of whether th e selection policies appear to endorse religion in the eyes of a “reasonable observer,” who “‘must be deemed aware’ of the ‘histo ry 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 reaso nable observer, c ontemplating the results of the policies (as gathered in the chaplains’ statistical eviden ce), would infer that the governm ent had as a p ractical matter endorsed the liturgical denominations.
Assuming arguendo that it is proper to see the “reasonable observer” as a hypot hetical person reviewing an array of statistics (the o bserver is already a judicial cons truct rather than a hum an being), the figures in this case would not lead him to perceive endorse ment. Here the plaintiffs’ statistics fail to show govern ment endorsement of particular religions under the reasonable observer test for the same reason that, in th e equal protection context, they failed to show intentional discrim ination paralleling that of Gomillion or Yick Wo. The only new wrinkle, pe rhaps, is that we m ust impute to the reasonable observer either enough grasp of statistics not to be m isled by the assertion of “statistical significance,” or at least the m odesty not to leap to a conclusion about the data w ithout making an elem entary inquiry on the subject. W e feel confident that when reasonable observers find that th e term means only that there

10
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 m atters as hiring and pay were enough to support district court findings of racial discrimination. See, e.g., Berger v. Iron Worker s 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 f ound liability only after being satisfied that the statis tical evidence properly controlled for confounding variables. See, e.g., Berger, 843 F.2d at 1413-21 (reviewing pot ential non-discriminatory explanations); id. at 1419 (reasoning that the “entire notion of employing statistical proof is to elim inate non-discriminatory causes” of the disparities); Segar, 738 F.2d at 1274-77. Here, as we observed in the equal pr otection analysis, the chaplains point to no serious effort at such controls for any of their statistical comparisons. Accordin gly, even assum ing that a court could properly impute a belief in denom inational favoritism to the reasonable observer sim ply on the basis of statistics that might satisfy a plaintiff’s Title VI I burden, th e 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 trad itional 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 im pact, for example, an action af fecting “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.

11
The district court’s order de nying the chaplains’ motion for preliminary injunction is therefore
Affirmed.

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 24, 2008

Decided August 1, 2008

No. 07-5359

IN RE: NAVY CHAPLAINCY

CHAPLAINCY OF FULL GOSPEL CHURCHES, ET AL., APPELLANTS
v.
UNITED STATES NAVY, ET AL., APPELLEES

Appeal from the United States District Court for the District of Columbia (No. 07ms00269)

Arthur A. Schulcz, Sr., argued the cause and filed the briefs for appellants.
Lowell V. Sturgill, Jr., Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the briefs were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Robert M. Loeb, Attorney. Daniel E. Bensing, Attorney, entered an appearance.

2
Before: ROGERS and KAVANAUGH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH, in which Senior Circuit Judge SILBERMAN joins.
Dissenting opinion filed by Circuit Judge ROGERS.
KAVANAUGH, Circuit Judge: A group of Protestant Navy chaplains sued the Navy, alleging that the Navy’s operation of its retirement system discriminates in favor of Catholic chaplains in violation of the Establishment Clause. But the plaintiffs do not claim that the Navy actually discriminated against any of them. We conclude that plaintiffs lack standing to bring this claim, and we therefore affirm the judgment of the District Court.
I
The U.S. Navy maintains a Chaplain Corps of commissioned Navy officers to meet the spiritual needs of those who serve in the Navy and their families. Like other officers, chaplains are subject to military regulations with respect to hiring, promotion, and retirement.
The Navy divides its chaplains into four categories – Catholic, liturgical Protestant, non-liturgical Protestant, and Special Worship. As we explained in a previous opinion in this litigation, “liturgical Protestant” includes Protestant denominations that follow an established liturgy in worship services and practice infant baptism, such as Lutheran, Episcopal, Methodist, Presbyterian, and Congregational. Chaplaincy of Full Gospel Churches v. England, 454 F.3d

3
290, 294 (D.C. Cir. 2006) (Chaplaincy). “Non-liturgical Protestant” includes Protestant denominations that do not follow a formal liturgy in worship services and that baptize at the age of reason, such as Baptist, Evangelical, Pentecostal, and Charismatic. Id. at 294. The “Special Worship” category refers to other religious faiths, both Christian and nonChristian, and it includes Jewish, Christian Science, SeventhDay Adventist, Mormon, Buddhist, Hindu, Muslim, Jehovah’s Witness, and Unitarian. Id. at 295 n.3.
Plaintiffs are non-liturgical Protestant Navy chaplains, both current and retired.1 Plaintiffs filed suit, alleging that the Navy discriminates in favor of Catholic chaplains in certain aspects of its retirement system. See In re Navy Chaplaincy, No. 07-ms-269, slip op. at 1 (D.D.C. Oct. 15, 2007). Plaintiffs also sought a preliminary injunction.
The District Court initially denied plaintiffs’ preliminary injunction motion, finding that the chaplains had not shown the necessary irreparable injury to support a preliminary injunction. See Adair v. England, Nos. 00-cv-566 & 99-cv2945, slip op. at 2 (D.D.C. Feb. 7, 2005). On appeal, this Court reversed, explaining that, for purposes of a preliminary injunction, the allegation of an Establishment Clause violation itself demonstrates sufficient harm to satisfy the irreparable injury prong of the preliminary injunction test – assuming, of course, that the party has standing to allege the violation in the first place. See Chaplaincy, 454 F.3d at 303-04 & n.8. The Court therefore vacated the denial of a preliminary
1 Plaintiffs also include certain organizations of non-liturgical Protestant chaplains. Because the organizations have standing in these circumstances only if one of their individual members has standing, we do not address them separately. See Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 342-43 (1977).

4
injunction and remanded for the District Court to consider the remaining factors in the preliminary injunction analysis, including likelihood of success on the merits. See id. at 30405.
On remand, in a well-reasoned opinion, the District Court concluded that plaintiffs lacked standing to bring this claim. This appeal followed.
II
Article III of the Constitution limits the judicial power to deciding “Cases” and “Controversies.” “One of the controlling elements in the definition of a case or controversy under Article III is standing.” Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553, 2562 (2007) (internal quotation marks and alteration omitted).2 The three factors establishing the “irreducible constitutional minimum” of standing are well established. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First and most relevant here 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. Id. (internal quotation marks omitted); see also Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1292-93 (D.C. Cir. 2007). Second is causation: The asserted injury must be “fairly traceable to the challenged action of the defendant.” Lujan, 504 U.S. at 560 (internal quotation marks and alterations omitted). Third is redressability: It must be likely that a
2 In referring to Hein throughout our opinion, we are referring specifically to Justice Alito’s opinion, which is the binding opinion of the Court in that case. See Marks v. United States, 430 U.S. 188, 193 (1977).

5
favorable decision by the court would redress the plaintiff’s injury. Id. at 561.
“[T]he law of Art. III standing is built on a single basic idea – the idea of separation of powers.” Allen v. Wright, 468 U.S. 737, 752 (1984). The doctrine is “founded in concern about the proper – and properly limited – role of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490, 498 (1975). The federal courts are “not empowered to seek out and strike down any governmental act that they deem to be repugnant to the Constitution.” Hein, 127 S. Ct. at 2562. “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive.” Lujan, 504 U.S. at 576; see also Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474-75 (1982).
Those critical and bedrock principles of separation of powers inform our approach to plaintiffs’ claim.
III
In reviewing the standing question, we must be “careful not to decide the questions on the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims.” City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003). For purposes of our analysis in this case, we therefore must assume arguendo that the Navy’s operation of its retirement system favors Catholic chaplains and disfavors non-liturgical Protestant chaplains in violation of the “clearest command of the Establishment Clause” – that “one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). Even assuming that plaintiffs’ allegations are accurate, however, they do not have

6
standing to bring this claim against the Navy because they have not sufficiently demonstrated their own injury-in-fact.
If plaintiffs had alleged that the Navy discriminated against them on account of their religion, plaintiffs would have alleged a concrete and particularized harm sufficient to constitute injury-in-fact for standing purposes. But plaintiffs have conceded that they themselves did not suffer employment discrimination on account of their religion. They have conceded that the Navy did not deny them any benefits or opportunities on account of their religion. See In re Navy Chaplaincy, No. 07-ms-269, slip op. at 7-9 (D.D.C. Oct. 15, 2007). Rather, they suggest that other chaplains suffered such discrimination.
Plaintiffs argue that they nonetheless have standing for either of two reasons: (i) they are taxpayers who object to the Navy’s allegedly discriminatory operation of its chaplaincy program, or (ii) they have been subjected to the Navy’s “message” of religious preference as a result of the Navy’s running a retirement system that favors Catholic chaplains. We disagree. Because plaintiffs’ claim does not fit within the narrow confines of Establishment Clause taxpayer standing permitted by Flast v. Cohen, 392 U.S. 83 (1968), they do not have standing as taxpayers. See Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553, 2562-72 (2007). Nor do plaintiffs have standing based on their exposure to the Navy’s alleged “message” of religious preference.
A
As the Supreme Court has repeatedly held, a taxpayer’s interest in ensuring that appropriated funds are spent in accordance with the Constitution does not suffice to confer Article III standing. See Hein, 127 S. Ct. at 2563 (2007). Back in Frothingham v. Mellon, 262 U.S. 447 (1923),

7
taxpayers sued the Government, arguing that the Maternity Act of 1921 improperly invaded powers reserved to States by the Tenth Amendment. The Supreme Court rejected taxpayer standing in that case: “The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same . . . .” Id. at 487; see also Doremus Bd. of Educ. v. Hawthorne, 342 U.S. 429, 433-34 (1952).
In 1968, 45 years after Frothingham, the Supreme Court carved out a narrow exception to the general constitutional bar on taxpayer suits; the Court held that federal taxpayers had standing to bring an Establishment Clause challenge to federal financing for parochial schools. See Flast, 392 U.S. 83. But according to Flast, taxpayers may bring an Establishment Clause challenge only when they challenge legislation passed pursuant to the Taxing and Spending Clause in Article I, § 8 of the Constitution. See id. at 102-03.
The Court has subsequently made clear that Flast is a very narrow exception to the general bar against taxpayer standing. In Valley Forge, for example, the plaintiffs argued that the Government violated the Establishment Clause when it transferred a tract of “surplus property” to a Christian college. Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 467-68 (1982) (internal quotation marks omitted). The Court found that the plaintiffs, a group composed of “90,000 taxpayer members,” did not have standing both because the challenged action was executive rather than legislative and because the property transfer was an exercise of executive authority pursuant to legislation passed under the Property Clause in Article IV, § 3

8
of the Constitution rather than the Taxing and Spending Clause in Article I, § 8. Id. at 469, 479-80 (internal quotation marks omitted).
In Bowen v. Kendrick, the Supreme Court allowed a group of federal taxpayers to challenge the Adolescent Family Life Act, a statute appropriating funds for religious organizations, among others, to fight teen pregnancy. 487 U.S. 589, 593, 596-97 (1988). The Court found that plaintiffs’ claim challenged a program expressly authorized by Congress under the taxing and spending power, thus fitting within Flast. Id. at 619. The key to Bowen’s conclusion, as the Court has subsequently explained, was that the statute was ‘“at heart a program of disbursement of funds pursuant to Congress’ taxing and spending powers’” and that plaintiffs’ claims were concerned with the expenditure of funds ‘“pursuant to the AFLA’s statutory mandate.’” Hein, 127 S. Ct. at 2567 (quoting Bowen, 487 U.S. at 619-20) (emphasis omitted).
In its recent decision in Hein, the Court declined to expand Flast to encompass discretionary Executive Branch spending: “Because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the Flast exception to purely executive expenditures would effectively subject every federal action – be it a conference, proclamation or speech – to Establishment Clause challenge by any taxpayer in federal court.” Id. at 2569. Although Hein did not eliminate the Flast exception to the bar against taxpayer standing, the case forcefully emphasized the exception’s extremely limited contours: “It is significant that, in the four decades since its creation, the Flast exception has largely been confined to its facts.” Id. at 2568-69. As Hein explained, the Court has limited the “expansion of federal taxpayer and citizen standing in the

9
absence of specific statutory authorization to an outer boundary drawn by the results in Flast.” Id. at 2569 (internal quotation marks and emphasis omitted).3
In this case, plaintiffs’ claim does not fit within the narrow Flast exception. No legislative enactment expressly authorizes or appropriates funds for the Navy to favor Catholic chaplains in its retirement system. Plaintiffs cite, for example, the statutes establishing the Navy Chaplain Corps, but those statutes make no reference to denominational category, only to chaplains generally. See 10 U.S.C. §§ 5142, 5150. And plaintiffs, who themselves are chaplains, obviously do not contend that congressional legislation establishing the Navy Chaplaincy itself violates the Establishment Clause; they merely want the Navy to operate the Chaplain Corps differently. Cf. Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985) (approving military chaplaincy program).
As in Hein, the challenged expenditures here – extra salary and retirement-related benefits allegedly provided to Catholic chaplains – “were not expressly authorized or mandated by any specific congressional enactment.” Hein, 127 S. Ct. at 2568. Indeed, plaintiffs contend that the Chaplain Corps is being operated by the Navy in contravention of the law, not in accordance with the law. See Plaintiffs’ Br. 48 (“Appellees have not followed either the law
3 The Flast exception may be further limited to Congress’s disbursement of federal funds outside the Government. In both Flast and Bowen v. Kendrick, the only two Supreme Court cases upholding taxpayer standing, the statutes authorized disbursement of federal funds to outside entities, including religious organizations. But we need not address that question in this case given that plaintiffs’ argument for taxpayer standing fails at a more basic level.

10
or the DOD regulations.”). Under the Supreme Court’s precedents, that contention directly undermines any claim to taxpayer standing. In sum, plaintiffs do not have standing as taxpayers.
B
Plaintiffs alternatively contend that they have standing because “Establishment Clause injury flows from the forbidden messages of preference or disapproval” inherent in the Navy’s denominational preference. Plaintiffs’ Br. 28. In so arguing, they rely primarily on this Court’s decision in Chaplaincy, which explained that for the purposes of a preliminary injunction, the “mere allegation” of an Establishment Clause violation is always sufficient to show irreparable harm. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303-04 (D.C. Cir. 2006). Plaintiffs claim that because their allegations demonstrate irreparable injury for preliminary injunction purposes, they have necessarily shown injury-in-fact for standing purposes.
But the Court in Chaplaincy merely held that the allegation of an Establishment Clause violation is sufficient to satisfy the irreparable harm prong of the preliminary injunction standard – presupposing that a party has standing to allege such a violation. See id. at 303-04 & n.8. A per se rule defining automatic injury-in-fact for every plaintiff who claims an Establishment Clause violation – as plaintiffs strain to find in the Chaplaincy opinion – would run counter to decades of settled jurisprudence setting forth the requirements for standing in Establishment Clause cases. Jurisdictional requirements are not disposed of so easily, and the Court in Chaplaincy did not purport to make the sweeping change attributed to it by plaintiffs.

11
Apart from citing Chaplaincy, plaintiffs also claim injury-in-fact from their being subjected to the “message” of religious preference conveyed by the Navy’s allegedly preferential retirement program for Catholic chaplains. The program, they say, makes them feel like second-class citizens within the Navy Chaplaincy even if they themselves have not suffered discrimination on account of their religion.
As the Supreme Court has often stated, mere personal offense to government action does not give rise to standing to sue. Allen v. Wright, 468 U.S. 737, 752-54 (1984); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 575-76 (1992). “By the mere bringing of his suit, every plaintiff demonstrates his belief that a favorable judgment will make him happier. But although a suitor may derive great comfort and joy” from knowing that the Government is following constitutional imperatives, “that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998). “Recognition of standing in such circumstances would transform the federal courts into no more than a vehicle for the vindication of the value interests of concerned bystanders.” Allen, 468 U.S. at 756 (internal quotation marks omitted).
Plaintiffs respond that their claim is similar to religious display and prayer cases where courts have found (or at least apparently assumed) standing. See, e.g., McCreary County v. ACLU, 545 U.S. 844, 851-52 (2005) (Ten Commandments displays that were “readily visible” to citizens conducting civic business) (internal quotation marks omitted); Van Orden v. Perry, 545 U.S. 677, 681-82 (2005) (Ten Commandments display on the grounds of the Texas State Capitol that petitioner frequently encountered); County of Allegheny v. ACLU, 492 U.S. 573, 578 (1989) (crèche display in county

12
courthouse and menorah display outside city-county building); Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir. 1997) (Ten Commandments display in county courtroom; noting that display cases are “particularized subclass of Establishment Clause standing jurisprudence”); see also Lee v. Weisman, 505 U.S. 577, 580 (1992) (governmental prayer at school graduation); Marsh v. Chambers, 463 U.S. 783, 784-85 (1983) (daily prayer at opening of state legislature); Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 205-12 (1963) (daily Bible reading in class); Engel v. Vitale, 370 U.S. 421, 422-23 (1962) (official state prayer in class).
These Supreme Court cases do not all directly discuss the standing issue. It is a well-established rule that “cases in which jurisdiction is assumed sub silentio are not binding authority for the proposition that jurisdiction exists.” John Doe, Inc. v. DEA, 484 F.3d 561, 569 n.5 (D.C. Cir. 2007) (internal quotation marks omitted). In any event, accepting those cases as precedents on standing,4 we nonetheless find significant differences between plaintiffs’ case and the religious display and prayer cases. In the religious display and prayer cases, the Government was actively and directly communicating a religious message through religious words or religious symbols – in other words, it was engaging in religious speech that was observed, read, or heard by the plaintiffs in those cases. Here, by contrast, the Navy is not communicating a religious message through religious words or religious symbols. Plaintiffs’ objection here is more akin to the objection to the property transfer in Valley Forge,
4 See generally Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494, 499-502 (5th Cir. 2007) (DeMoss, J., concurring); Ira C. Lupu & Robert W. Tuttle, Ball on a Needle: Hein v. Freedom from Religion Foundation, Inc. and the Future of Establishment Clause Adjudication, 2008 B.Y.U. L. REV. 115, 158-64 (2008).

13
where the Court stated that the plaintiffs failed “to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms.” Valley Forge, 454 U.S. at 485-86 (emphasis added and omitted); see also Suhre, 131 F.3d at 1086 (quoting Valley Forge and stating “a mere abstract objection to unconstitutional conduct is not sufficient to confer standing”).
Plaintiffs’ argument would extend the religious display and prayer cases in a significant and unprecedented manner and eviscerate well-settled standing limitations. Under plaintiffs’ theory, every government action that allegedly violates the Establishment Clause could be re-characterized as a governmental message promoting religion. And therefore everyone who becomes aware of the “message” would have standing to sue. The neighbors in Valley Forge, the hotel workers at a conference for faith-based organizations in Hein, the list goes on – all could have obtained standing to sue simply by targeting not the government’s action, but rather the government’s alleged “message” of religious preference communicated through that action. Indeed, as plaintiffs’ counsel acknowledged at oral argument, under plaintiffs’ standing theory any recipient of the Navy’s “message” in this case, including the judges on this panel, would have standing to bring suit challenging the allegedly discriminatory Chaplain Corps. Oral Arg. Tr. at 6-7. The jurisdictional requirements of Article III are not so manipulable. They do not allow anyone who becomes aware of a government action that allegedly violates the Establishment Clause to sue over it on the ground that they are offended by the allegedly unconstitutional “message” communicated by that action. In

14
the government employment context at issue here, it thus comes as no surprise that neither plaintiffs nor the dissent has cited any case holding that a plaintiff can maintain a religious employment discrimination suit under the Religion Clauses when complaining about employment discrimination suffered by others, not by the plaintiff himself or herself. We think the reason for the dearth of precedent is evident: When plaintiffs are not themselves affected by a government action except through their abstract offense at the message allegedly conveyed by that action, they have not shown injury-in-fact to bring an Establishment Clause claim, at least outside the distinct context of the religious display and prayer cases.
To be sure, we recognize that plaintiffs’ creative analogy to the religious display and prayer cases has some surface logic. But the implications of plaintiffs’ theory for standing doctrine are quite radical: Plaintiffs seek to use the religious display and prayer cases to wedge open the courthouse doors to a wide range of plaintiffs alleging Establishment Clause violations who were previously barred by bedrock standing requirements – requirements that are essential to preserving the separation of powers and limited judicial role mandated by the Constitution. We decline the invitation to transform Establishment Clause standing doctrine in this way. What the Supreme Court said last year in Hein applies just as well to plaintiffs’ reliance on the religious display and prayer cases here: “It is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic.” Hein, 127 S. Ct. at 2571.
* * *
We affirm the judgment of the District Court.
So ordered.

ROGERS, Circuit Judge, dissenting: The Establishment Clause prevents “the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services,” Engel v. Vitale, 370 U.S. 421, 429 (1962), and ensures that “all creeds . . . be tolerated and none favored,” Lee v. Weisman, 505 U.S. 577, 590 (1992); see McCreary County v. Am. Civ. Liberties Union of Ky., 545 U.S. 844, 860 (2005). A governmental accommodation for religion may violate the Establishment Clause if it “singles out a particular religious sect for special treatment” because “whatever the limits of permissible . . . accommodations may be . . . , it is clear that neutrality as among religions must be honored.” Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 706-07 (1994) (citations omitted). “‘When the power, prestige and financial support of government [are] placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.’” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 221 (1963) (quoting Engel, 370 U.S. at 430-31).
In Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006), the court thus observed that the liberty interest shielded by the Establishment Clause is “protection against government imposition of a state religion or religious preference,” id. at 302 (emphasis added). Stating that “the Establishment Clause is implicated as soon as the government engages in impermissible action,” id., the court explained that unlike freedom of expression cases, for example, “[t]he harm inflicted by religious establishment is self-executing and requires no attendant conduct on the part of the individual,” id. at 303; see also id. at 302. In describing the impermissible government action at issue, the court stated:
Where, as here, the charge is one of official preference

2
of one religion over another, such governmental endorsement “sends a message to nonadherents [of the favored denomination] that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”
Id. at 302 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)) (alteration in original). The court held that such an allegation sufficed to show irreparable harm, or “injury [that is] beyond remediation [by monetary damages],” id. at 297, for the purpose of obtaining injunctive relief, crediting appellants’ allegation of “the harm that flows from the ‘forbidden message’ of marginalization [that the Navy’s] actions send to [them],” id. at 299 (quoting Appellants’ Br. at 20). The court did not expressly hold that appellants1 had Article III standing, but see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998), but noted that its legal “conclusion presupposes, of course, that the party has standing to allege such a violation,” Chaplaincy, 454 F.3d at 304 n.8.
The court’s decision in Chaplaincy regarding appellants’ liberty interest that is protected by the Establishment Clause and the nature of their injury is no less applicable here. The same parties and the same charge are involved, see LaShawn A. v. Barry, 87 F.3d 1389, 1393-95 (D.C. Cir. 1996) (en banc), and injury sufficient for irreparable harm has resonance for injuryin-fact under Article III, see Taylor v. Resolution Trust Corp., 56
1 Due to the consolidation of three cases, appellants include active duty, reserve, retired, and former non-liturgical Protestant Navy chaplains as in Chaplaincy, and two endorsing agencies — Chaplaincy of Full Gospel Churches and Associated Gospel Churches. Hereinafter in referring to “appellants,” I refer only to the chaplains currently serving in the Navy Chaplain Corps.

3
F.3d 1497, 1508 (D.C. Cir. 1995), because to show irreparable harm “[a] plaintiff must do more than merely allege . . . harm sufficient to establish standing,” Associated Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equity, 950 F.2d 1401, 1410 (9th Cir. 1991). As explained in Chaplaincy, “[t]his court has set a high standard for irreparable injury” within the preliminary injunction inquiry. 454 F.3d at 297. Such injury must be “both certain and great,” “actual and not theoretical,” “beyond remediation,” and also “of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Id. (quotation marks and citations omitted). For Article III, the requisite injury-in-fact must be “concrete and particularized” and “actual or imminent,” not “hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quotation marks omitted). Because “the Navy’s alleged violation of the Establishment Clause per se constitutes irreparable harm,” Chaplaincy, 454 F.3d at 299, appellants have met their burden on the injury prong of Article III standing.2
As members of non-liturgical Protestant churches and fellowships, appellants assert that the Navy has singled out the Catholic faith as the preferred religious tradition in its Chaplain Corps by choosing over several decades to allow only Catholic
2 To the extent the court seeks to avoid this precedent by interpreting a footnote in Chaplaincy to indicate that the court was “presupposing” appellants’ standing, Op. at 10, and thus addressing the request for injunctive relief without satisfying itself that appellants had standing, its approach is contrary both to the principle in Steel Co., 523 U.S. at 94-95, and to the more natural reading of the footnote as merely recognizing, as this court has done before, that this prong of the preliminary injunction inquiry and the entirety of the Article III standing inquiry “overlap[] . . . somewhat,” but are not coextensive, see Taylor, 56 F.3d at 1508.

4
chaplains to serve beyond the required separation dates.3 This sends a message of denominational preference for Catholics and marginalization for non-Catholic adherents, causing appellants to suffer psychological harm while serving as chaplains. Compl. ¶¶ 3, 37(e), 39. By endowing Naval officer status in a preferential manner upon the representatives of a particular type of religious ministry,4 who then, as part of their Naval service duties, use words and symbols to serve their religious cause, the
3 According to appellants, “the 4109 program” has three parts: (1) illegal appointments to active duty through age waivers for over-age Catholic clergy, (2) the consequent illegal continuation of such clergy as chaplains to the age of 67, and (3) the eventual illegal transfer of such clergy to the Retired Reserve and subsequent recall to active duty as designated 4109 Reservists. The program is designed in part to allow Catholic chaplains who have reached their statutory separation age to continue to serve until they have completed twenty years of service and become eligible for pensions. See 10 U.S.C. §§ 1251, 14509, 14703; see also Chaplaincy, 454 F.3d at 293-96. At the time appellants filed their complaints, the age limit for the appointment of chaplains, like other officers, was forty-two, see 10 U.S.C. § 532(a)(2); while this provision is no longer applicable to chaplains, id. at § 532(d)(1) (as amended by Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, 188 Stat. 1811, 1872 (Oct. 28, 2004)), the statutory separation age for chaplains and other officers remains in effect.
4 Appellants cite a list of Catholic chaplains coded as “4109” currently serving with them in the Navy Chaplain Corps, and assert that additional chaplains are destined to become 4109 chaplains in view of the Navy’s list of Catholics appointed after age forty-two and extended on active duty and the dates they become eligible for pensions. For example, non-liturgical Protestant Chaplain Stewart served with over-age Catholic Chaplain Erestain. After this court’s decision in Chaplaincy, it appears that the Navy extended two non-Catholic chaplains for service beyond the age of 62. See 454 F.3d at 295.

5
Navy allegedly has “take[n] sides in a religious matter, effectively discriminating in favor of [one religion’s] view,” Commack Self-Serv. Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 425 (2d Cir. 2002), of the type of religious ministry that is most appropriate to serve “the religious needs of sailors,” In re England, 375 F.3d 1169, 1171 (D.C. Cir. 2004). See, e.g., McCreary County, 545 U.S. at 860; Kiryas Joel Vill., 512 U.S. at 698-705.
Appellants have suffered particularized Article III injury because they are not strangers to the Navy’s 4109 program. Their membership within the Chaplain Corps and their resulting receipt of a message of denominational preference make them comparable to a citizen who has “personal contact with the alleged establishment of religion,” Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir. 1997), such as in the religious display cases.5 Appellants’ charge does more than present a “creative analogy” with “some surface logic,” Op. at 14, as the court offers no basis for its unsupported conclusion that this case is different from “the distinct context of the religious display and prayer cases,” id. As counsel for the Navy acknowledged, “if a chaplain . . . is personally exposed to a [message of religious preference], there would be traditional standing.” Oral Arg. Tr. at 13 (Apr. 24, 2008). That is what appellants allege in
5 See, e.g., Vasquez v. L.A. County, 487 F.3d 1246, 1250-51 (9th Cir. 2007); Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188, 196 (5th Cir. 2006); ACLU Neb. Found. v. City of Plattsmouth, 358 F.3d 1020, 1026-31 (8th Cir. 2004), adopted in relevant part, 419 F.3d 772, 774 n.4 (8th Cir. 2005) (en banc); Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 72 (2d Cir. 2001); Washegesic v. Bloomingdale Pub. Schs., 33 F.3d 679, 682-83 (6th Cir. 1994); Doe v. County of Montgomery, 41 F.3d 1156, 1159-60 (7th Cir. 1994); Foremaster v. City of St. George, 882 F.2d 1485, 1490-91 (10th Cir. 1989); Saladin v. City of Milledgeville, 812 F.2d 687, 691-93 (11th Cir. 1987); Allen v. Hickel, 424 F.2d 944, 947 (D.C. Cir. 1970).

6
charging that the 4109 program establishes an “official preference of one religion over another” that causes them psychological injury due to their personal and direct receipt of the “‘message . . . that they are outsiders, not full members’” of the Navy’s Chaplain Corps. Chaplaincy, 454 F.3d at 302 (quoting Lynch, 465 U.S. at 688 (O’Connor, J., concurring)). Appellants’ injury is thus as particularized, see Lujan, 504 U.S. at 561 n.1, 573-74; Warth v. Seldin, 422 U.S. 490, 502 (1975), as that of the children in Schempp, 374 U.S. at 223-24, to whom school prayers were read, the plaintiffs in Women’s Equity Action League (WEAL) v. Cavazos, 879 F.2d 880, 884-85 (D.C. Cir. 1989), who were enrolled or employed in segregated schools, and the state legislator in Marsh v. Chambers, 463 U.S. 783, 786 n.4 (1983), who objected “as a member of the Legislature” to the use of a state-employed chaplain to convene its sessions. As members of a statutorily-defined community within the armed forces, appellants are not mere bystanders, Allen v. Wright, 468 U.S. 737, 756 (1984), and they did not “roam the country,” Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, 454 U.S. 464, 487 (1982), in search of impermissible government action.6
6 Contrary to the court’s suggestion, Op. at 12-13, Valley Forge included no indication that the Supreme Court questioned the plaintiffs’ standing on the ground that a government land transfer to a religious institution could not send a message of government endorsement of religion and thus violate the Establishment Clause. The Court based its Article III holding on the fact that the plaintiffs did not live in the state where the land transfer had occurred, had learned about it indirectly through a press release, and indicated no connection with the transfer that could personalize their stake in the suit. See 454 U.S. at 486-87; see also ASARCO Inc. v. Kadish, 490 U.S. 605, 616 (1989). As our sister circuits have held, Valley Forge’s holding, 454 U.S. at 485-87, suggests that “[t]he neighbors in Valley Forge,” Op. at 13, may be the very plaintiffs who would have had standing there. See, e.g., Suhre, 131 F.3d at 1087; Washegesic, 33

7
The uniqueness of appellants’ injury as chaplains in relation to their service in the Navy Chaplain Corps eliminates the concern expressed in Valley Forge that recognizing their standing would, in this court’s words, inappropriately “wedge open the courthouse doors,” Op. at 14; see also id. at 10, 13. Appellants’ charge is based on an injury distinct to their status within the Chaplain Corps, see Schempp, 374 U.S. at 224 n.9; Chaplaincy, 454 F.3d at 302; see also WEAL, 879 F.2d at 88485, and, “like Schempp before it, Valley Forge recognized that direct contact with an unwelcome religious exercise or display works a personal injury distinct from and in addition to each citizen’s general grievance against unconstitutional government conduct,” Suhre, 131 F.3d at 1086. Their alleged “genuine feeling of exclusion from the community . . . , and the deep offense from a perceived insult to one’s religious view committed by the government in one’s community,” Ariz. Civ. Liberties Union v. Dunham, 112 F. Supp. 2d 927, 935 (D. Ariz. 2000); see Suhre, 131 F.3d at 1087; Saladin, 812 F.2d at 692-93, demonstrates that appellants have suffered a personal injury-infact.
To reach the opposite conclusion, the court ignores both the nature of appellants’ charge and binding precedent. First, the court describes the charge as if it concerns only religious discrimination in traditional monetary terms, such as retirement benefits not denied to appellants or “discrimination suffered by others.” See Op. at 2, 3, 6, 14. Yet appellants do not so delimit their charge; rather, they allege that the Navy’s 4109 program violates the Establishment Clause by creating a government
F.3d at 682-83; ACLU of Ga. v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098, 1106-07 (11th Cir. 1983).

8
religious preference, see Chaplaincy, 454 F.3d at 302.7 Appellants’ standing thus does not hinge upon the mistreatment of any individual chaplain but upon the Navy’s alleged endorsement of a preference for another religious faith that directly affects them. The court’s narrow focus ignores the Constitution’s requirement that, in assessing constitutional injury, “we keep in mind ‘the myriad, subtle ways in which Establishment Clause values can be eroded,’” and that in addition to the mistreatment of an individual, “we [must] guard against other different, yet equally important, constitutional injuries,” such as the unconstitutional implementation of a government policy. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 314 (2000) (quoting Lynch, 465 U.S. at 694 (O’Connor, J., concurring)).
Second, the court states that “mere personal offense” or emotional injury is never enough for Article III injury, Op. at 11, but that is not the law.8 As the Supreme Court acknowledged in Association of Data Processing Service Organizations, Inc. v.
7 Although the court suggests that appellants have waived aspects of their allegations, Op. at 6, 13, the record is clear that they have not abandoned their Establishment Clause charge of an unconstitutional endorsement of a religious denomination that is particularized to them personally. Oral Arg. Tr. at 8-10; 25. Counsel emphasized that it is appellants’ “direct contact [with the 4109 program and its message] because of the small community” that creates their injury, id. at 8, for due to their direct exposure as chaplains, they experience the 4109 program as a type of faith discrimination, “a religious gerrymander,” because “[i]t draws lines” to favor one religious faith over another. Id. at 10; see also Appellants’ Br. at 27.
8 See, e.g., Am. Soc’y for Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 317 F.3d 334, 337-38 (D.C. Cir. 2003).

9
Camp, 397 U.S. 150 (1970), “[a] person . . . may have a spiritual stake in First Amendment values sufficient to give standing to raise issues concerning the Establishment Clause” if directly affected by the challenged governmental practice, id. at 154 (citing Schempp, 374 U.S. 203); see Valley Forge, 454 U.S. at 486-87 & n.22. Later, in Allen, 468 U.S. at 755, while holding that a plaintiff alleging an equal protection violation generally must claim a personal denial of equal treatment, the Supreme Court observed that “[t]here can be no doubt that . . . noneconomic injury [such as stigmatizing injury] is one of the most serious consequences of discriminatory government action and is sufficient in some circumstances to support standing.”9 In fact, the Supreme Court has reached the merits in numerous Establishment Clause cases where “mere personal offense,” Op. at 11, resulting from a plaintiff’s connection to a challenged practice appears to have provided the main possible injury to ground standing.10 As the Fourth Circuit has observed:
[T]he Establishment Clause plaintiff is not likely to
9 See, e.g., WEAL, 879 F.2d at 884-85; Gray v. Greyhound Lines, E., 545 F.2d 169, 175 (D.C. Cir. 1976); see also Shaw v. Hunt, 517 U.S. 899, 904 (1996) (citing United States v. Hays, 515 U.S. 737 (1995); Shaw v. Reno, 509 U.S. 630 (1993)); Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972); Richard H. Pildes & Richard G. Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 M ICH. L. REV. 483, 511-15 (1993); cf. Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954).
10 See, e.g., Van Orden v. Perry, 545 U.S. 677, 682 (2005); McCreary County, 545 U.S. at 853; Lee, 505 U.S. at 581; County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 587 (1989); Edwards v. Aguillard, 482 U.S. 578, 581 (1987); Wallace v. Jaffree, 472 U.S. 38, 42 (1985); Lynch, 465 U.S. at 671; see also Op. at 11-12 & n.4.

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suffer physical injury or pecuniary loss. Rather the spiritual, value-laden beliefs of the plaintiffs are often most directly affected by an alleged establishment of religion. Accordingly, rules of standing recognize that noneconomic or intangible injury may suffice to make an Establishment Clause claim justiciable.
Suhre, 131 F.3d at 1086 (quotation marks and citations omitted); see supra note 5.
Equally problematic is the court’s attempt to contrast appellants’ case with those where the government has, in the court’s words, “actively and directly communicat[ed] a religious message through religious words or religious symbols,” Op. at 12. Establishment Clause precedent is not so conveniently cabined into the narrow circumstances described by the court, where the government itself “engag[ed] in religious speech,” id. For one thing, the government need not intentionally favor one religious denomination over another in order to violate the Establishment Clause if its action has such an effect.11 When considering whether a government action has the effect of conveying a denominational endorsement, “[t]he question of governmental neutrality is not concluded by the observation that [a policy] on its face makes no discrimination between religions.” Gillette v. United States, 401 U.S. 437, 452 (1971). Equally important, there also is no requirement that the
11 See, e.g., Agostini v. Felton, 521 U.S. 203, 223 (1997); County of Allegheny, 492 U.S. at 592-93; Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 125-26 (1982); Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971); Mt. Royal Joint Venture v. Kempthorne, 477 F.3d 745, 758 (D.C. Cir. 2007); United Christian Scientists v. Christian Sci. Bd. of Dirs., First Church of Christ, Scientist, 829 F.2d 1152, 1161-62 (D.C. Cir. 1987); Allen v. Morton, 495 F.2d 65, 69-70 (D.C. Cir. 1973) (Tamm, J., joined by Robb, J., concurring).

11
government go so far as to use “religious words or religious symbols,” Op. at 12, to establish an unconstitutional religious endorsement. Rather, “the Establishment Clause forbids subtle departures from neutrality, ‘religious gerrymanders,’ as well as obvious abuses.” Gillette, 401 U.S. at 452 (quoting Walz v. Tax Comm’n, 397 U.S. 664, 696 (1970) (Harlan, J., concurring)). And, “the most basic command of the Establishment Clause — not to prefer some religions (and thereby some approaches to indoctrinating religion) to others” — does not apply only to a government action such as a prayer or ceremony that explicitly adopts a denomination’s chosen religious symbols, but also to other action taken in the usual course of government regulation or operation. Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1346 (D.C. Cir. 2002) (citing Larson v. Valente, 456 U.S. 228, 244 (1982)); see, e.g., Mt. Royal Joint Venture, 477 F.3d at 758; Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 294 (5th Cir. 2001). Thus, government action that draws a line around a religious denomination in a community can send a symbolic message of preference that needs no words just as easily as the government’s direct presentation of a religious symbol. See, e.g., Kiryas Joel Vill., 512 U.S. at 697 (citing Larkin, 459 U.S. at 125-26).
The court ignores all of this precedent in adopting the novel conception that appellants are not harmed for purposes of standing under the Establishment Clause unless the Navy itself directly uses religious words or symbols as occurred in the religious display cases, Op. at 12, 14. Rather than distinguish precedent in a reasoned manner, the court’s holding is the assertion that “[w]hen plaintiffs are not themselves affected by a government action except through their abstract offense at the message allegedly conveyed by that action, they have not shown injury-in-fact to bring an Establishment Clause claim, at least outside the distinct context of the religious display and prayer cases.” Id. at 14 (emphasis in original). Yet, “[t]he

12
Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from ‘making adherence to a religion relevant in any way to a person’s standing in the . . . community,’” County of Allegheny, 492 U.S. at 594 (quoting Lynch, 465 U.S. at 687 (O’Connor, J., concurring)) (emphasis added), and so directs the government to avoid a practice that “may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the [government] to enforce a religious orthodoxy,” Lee, 505 U.S. at 592 (emphasis added). Moreover, when a court reaches the merits “[i]n cases involving [government] participation in a religious activity” — such as the employment of Navy chaplains as religious ministry professionals — the question is “whether an objective observer . . . would perceive [its action] as a [governmental] endorsement” of religion. Santa Fe Indep. Sch. Dist., 530 U.S. at 308 (quotation marks omitted). Even so secular an act as the grant of a copyright, this court held, ran aground because providing exceptional copyright benefits to a particular religious institution “bestowed upon the Church . . . symbolic recognition as guardian of the [contested] text,” with consequent practical advantages, and “ha[d] the unmistakable effect of advancing the Church’s cause.” United Christian Scientists, 829 F.2d at 1171. Although the religious institution alone used religious words and symbols, the government’s unusual treatment of one church “unequivocally and unqualifiedly endorsed [it] as first interpreter and guardian of th[e] [copyrighted] work.” Id. at 1170; see also Commack, 294 F.3d at 425.
Here, within the context of their chaplaincy assignments and in the absence of a legitimate explanation, the 4109 program could fairly be understood as a religious endorsement because it has the effect of selecting particular “religious words and symbols,” Op. at 12, to play an enhanced role within the Navy Chaplain Corps by specially retaining only representatives of the

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Catholic faith for extended service in which they engage in religious speech on behalf of that Corps. See Santa Fe Indep. Sch. Dist., 530 U.S. at 307-09. The job of a 4109 chaplain, as for all chaplains, requires representing a particular denomination as a “religious ministry professional,” an “individual endorsed to represent a religious organization and to conduct its religious observances or ceremonies.” Instruction 1304.28, Guidance for the Appointment of Chaplains for the Military Departments ¶¶ 6, E.2.1.9 (Dep’t of Def. June 11, 2004); see England, 375 F.3d at 1171.12 So understood, due to appellants’ direct exposure to the 4109 program’s preference for Catholics, the Navy conveys to them the “message . . . that [as nonadherents of the favored denomination] they are outsiders, not full members of the . . . community,” McCreary County, 545 U.S. at 860 (quotation marks omitted), for “the government[] [appears to be] lending its support to the communication of a religious organization’s religious message,” County of Allegheny, 492 U.S. at 601; see Larkin, 459 U.S. at 125-26; Commack, 294 F.3d at 425; United Christian Scientists, 829 F.2d at 1170-71, and thus causes them psychological harm as Navy chaplains that is cognizable under the Establishment Clause.
In any event, whether the Navy’s 4109 program sends a prohibited message is a merits question that is not before the court, see Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003). Of course, the court’s premature determination of this issue may arise from the realization that if a personally observed religious message causes harm “there would be traditional standing,” as the Navy’s counsel acknowledged, Oral Arg. Tr. at 13; see also id. at 18-22.
12 See also Instruction 1730.7B, Religious Ministry Support within the Department of the Navy ¶ 4.a (Dep’t of Navy, Ofc. of Sec’y Oct. 12, 2000); Instruction 1730.1D, Religious Ministry in the Navy ¶ 4 (Dep’t of Navy, Ofc. of Ch. of Naval Operations May 6, 2003).

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At this point in the proceedings in determining Article III standing, however, the court must assume the merits of appellants’ charge that the Navy’s 4109 program “d[oes], in fact, convey” a message of denominational preference directly harming them as chaplains. Vasquez, 487 F.3d at 1251; see Warth, 422 U.S. at 500, 502; Info. Handling Servs., 338 F.3d at 1029; City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003).
Under the Establishment Clause, then, appellants’ membership in a narrowly defined community — the Navy Chaplain Corps — directly affected by the 4109 program, and the message this program communicates to them as chaplains particularizes their injury-in-fact, for “[t]he practices of [one’s] own community may create a larger psychological wound than someplace [one is] just passing through,” Washegesic, 33 F.3d at 683, by making one feel like a “second class citizen[],” Saladin, 812 F.2d at 693; see Suhre, 131 F.3d at 1090. This directly follows from Chaplaincy and Supreme Court precedent, both of which the court misconstrues. Because appellants’ injury-in-fact is traceable to the Navy’s 4109 program and is likely to be redressed by holding that the program is unlawful and enjoining preferential treatment of 4109 chaplains and the message it sends to appellants, they also meet the other prongs of the standing test, see Lujan, 504 U.S. at 560-61.
Accordingly, I would reverse the denial of the motion for a preliminary injunction and leave for the district court to determine upon remand whether appellants have otherwise met the requirements for obtaining a preliminary injunction, see Chaplaincy, 454 F.3d at 305, and respectfully dissent. Because appellants have Article III standing, I do not reach the question whether they also have taxpayer standing.