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 inthe UnitedStatesNavy, theirendorsingagencies, and
a fellowshipofnon-denominational Christianevangelicalchurches, 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 Plaintiffs' Motion for Modification and/or Clarification of the Court's Decision to Dismiss Certain Plaintiffs under the Statute of Limitations ("Motion") [Dkt. No. 203

### J Upon consideration of Plaintiffs' Motion, and Plaintiffs' Errata [Dkt. No. 206], Defendants' Opposition to the Motion [Dkt. No. 208], Plaintiffs' Reply [Dkt.

______No._ 

### :212L and the entire record herein, and for the reasons set

--- forth below, Plaintiffs' Motion shall be denied.I . BACKGROUND A brief recitation of the facts is necessary to resolve Plaintiffs' Motion. For a more detailed summary of the facts and proceduralhistory, see this Court's September26, 2014 Memorandum Opinionresolvingthe Cross-Motions for SummaryJudgment [Dkt. No. 194]
.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 andAdairwere filed inthis Court onNovember 5,

1999, andMarch 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 [GibsonDkt. No. 1]. On June 18, 2007, the Court consolidated all three actions, concluding that they raise "substantially similar constitutional challenges to theNavyChaplaincyprogram." Mem. Order, datedJune. 18, 2007, at 4 [Dkt. No. 11]. Between 2002 and 2009, the parties conducted discovery, interspersed with collateral litigation and - 2 -three interlocutory appeals to the D.C. Circuit. 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 September 26, 2014, the Court granted Defendants' Motion for Partial Summary Judgment, finding that many of Plaintiffs' claims were time-barred. 1 See Memorandum Opinion on Motions for Partial Summary Judgment ("Summary Judgment Opinion")[Dkt. No. 194]
. The Court also ordered the parties to submit a jointNotice identifying the remaining claims following its Order. Id. The parties submitted their Notice on October 24, 2014 [Dkt. No. 199] and a Status Conference was held onNovember 5, 2014. On November 19, 2014, Plaintiffs filed their present Motion for Modification and/or Clarification [Dkt. No. 203]. Defendants filed their Opposition on December 18, 2014 ("Opp'n") [Dkt. No. 208], and Plaintiffs filed their Reply on January 12, 2015 ("Reply") [Dkt. No. 212].

1 Specifically, the Court granted summary judgment to Defendants on: "all CFGC claims based on policies or personnel actions ---fi.naI1zea-prior**~Novem15er** 5-, -r9-9-3;-ai-1-Aacrtr-c1.-a:.tm-s-rra:s-e-d-on policies or personnel actions finalized prior to March 17, 1994; and all Gibson claims based on policies or personnel actions finalizedprior toApril 28, 2000." Orderdated September 26, 2014 [Dkt. No. 193] - 3 -...
II. LEGAL STANDARD2 Under Federal Rule of Civil Procedure 54(b) the Court has discretion to reconsider its own interlocutory decisions as justice requires at "any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities[,]" Fed. R. Civ. P. 54(b). Our Court has consistently held that Rule 54(b) reconsideration may be granted "as justice requires.# Cobell v. Jewell, 802 F.3d 12, 25 (D.C. Cir. 2015); Judicial Watchv. Dep't of Army, 466 F. Supp. 2d 112, 123 (D.D.C. 2006). Under the "as justice requires" standard, a court may consider whether it "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] sincethe submissionof the issuetothecourt." Judicial Watch, 466 F. Supp. 2dat 123 (quotingCobellv. Norton, 224 F.R.D.

2 Plaintiffs state inthe first sentence of theirMotionthat they also seek reconsideration under Fed. R. Civ. P. 59, but fail to mention Rule 59 at any other point in their Motion or Reply. In light of Plaintiffs' failure to pursue their Rule 59 argument and because this Motion is more appropriately viewed as a Rule 54(b)

- ·------Morion, -Ene-Court: wi-1-1-1-i-m-1t-1c-s-arra-i-y-s-i-s--t-o-Ru-1-e-s-4-(-b-)-.--:rn-any--·· event, "courts have more flexibility in applying Rule 54(b) than in determining whether reconsideration is appropriate under Rule 59(e)." Cobell v. Jewell, 802 F.3d 12, 26 (D.C. Cir. 2015) (internal quotationmarks and citation omitted), - 4 -

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266, 272 (D.D.C. 2004)). "Errors of apprehension may include a Court's failure to consider 'controlling decisions or data that might reasonably be expected to alter the conclusion reached by the court.'" Singhv. GeorgeWashingtonUniv., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995)). Ultimately, the "as justice requires" standard amounts to determining "whether reconsideration is necessary under the relevant circumstances." Judicial Watch, 466 F. Supp. 2d at 123. While the court has a great deal of discretion under 54(b), it is limitedby the lawof the case doctrine and "subject to the caveat that, where litigants have once battled for the court's decision, theyshouldneitherberequired, norwithoutgoodreasonpermitted, to battle for it again." Singh, 383 F.Supp.2d at 101 (internal citations omitted). III. ANALYSIS A. The Court Correctly Held Section 2401(a) Jurisdictional To Be
Plaintiffs argue that the Court was incorrect in its conclusionthat 28 U.S.C. § 2401(a) isjurisdictionalanddoes not permit class action tolling. While Plaintiffs make several arguments as to why the Court's Summary Judgment Opinion was incorrect, theydonotdirectlyaddresswhythis Court isnotbound
- 5 -by our Court of Appeals' decision in Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014). 3 As discussed in the Summary Judgment Opinion that Plaintiffs ask the Court to reconsider, our Court of Appeals has long held that Section 2401(a) is unlike a "normal statute of limitations" because it "'creates a jurisdictional condition attached to the government's waiver of sdvereign immunity" that "cannot be waived by the parties" and is not subject to equitable extensions. Mendoza, 754 F.3dat 1018 (quotingP

### &VEnters. v. U.S. ArmyCorps of Eng'rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008) (citing cases)). Under this clear and controlling precedent, the Court lacks any authority to extend the limitations period for claims governedby Section2401(a). Id.; see alsoJohnR. Sand

### &Gravel Co. v. United States, 552U.S. 130, 134 (2008) (observingthata "jurisdictional" statute of limitations "forbid[s] a court to consider whether certain equitable considerations warrant extending a limitations period")
.

3 Plaintiffs cite toMenominee IndianTribe of Wisconsinv. United States, 614 F.3d523 (D.C. Cir. 2010) ("MenomineeI") andMenominee IndianTribe ofWisconsinv. United States, 764 F.3d 51 (D.C. Cir. 2014) ("Menominee II"), but neither case is applicable, as they ------de-a-1-wtt_h_a_a-1f-f-ere-nt-statut-e-o-f-i-±mttattorrs--p1'.'0Vrs±-on-. -r;n---------- addition, Mendoza was decided only a few months after Menominee II; presumably the Court of Appeals was aware of its recent decision in Menominee II when it held that Section 2401(a) is jurisdictional. - 6 -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 (citingP &VEnters., 516 F.3dat 1027 &n.2; Felterv. Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007)). Inaddition, afterbriefing
on the present Motion was complete, the Supreme Court held that the statute of limitations withrespect to the Federal Tort Claims Act in28 U.S.C. § 240l(b) was notjurisdictionalbecause Congress had "providedno clear statement indicating that § 240l(b) is the
rare statute of limitations that can deprive a court of jurisdiction." United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015). However, because our Court of Appeals has explicitly held that § 240l(a) is jurisdictional, and because the Supreme Court's holding in Kwai Fun Wong is limited to § 2401(b), this Court remains bound by Circuit precedent as it currently exists. B. The Court Correctly Denied Equitable Tolling of the Limitations Period Plaintrfl:s--argue that**-D~~-Circui**t preceaent------ariows Secc.fon--

- - 240l(a) to tolled, even if it is jurisdictional. See Pls.' Mot.
- 7 -at 5-8. Plaintiffs rely exclusively on our Court of Appeals' decisioninHohri v. United States, 782 F.2d 227 (D.C. Cir. 1986), vacated and remanded on other grounds, 482 U.S. 64 (1987). In Hohri, the Circuit Court held that fraudulent concealment will toll Section2401(a)'s six-year statuteof limitations. Hohri, 782 F.2dat247. The CircuitCourt'sopinionwasvacatedbytheSupreme Court onunrelatedjurisdictional grounds. Hohri, 482 U.S. at 68. Since Hohri was vacated, courts in this circuit have continuouslyheld that because Section 240l(a) is jurisdictional, they lack thepower to toll its limitationperiod. SeeW. Virginia Highlands Conservancyv. Johnson, 540 F. Supp. 2d 125, 138 (D.D.C. 2008) (Section 2401(a) has been construed as a jurisdictional statute of limitations and cannot be overcome by the application of judicially recognized exceptions such as equitable tolling or fraudulent concealment); Conservation Force v. Salazar, 811 F. Supp. 2d 18, 27, 28 n.4 (D.D.C. 2011) (same), vacatedandremanded
on other grounds, Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1202 (D.C. Cir. 2013); Appalachian Voices v. McCarthy, 989 F. Supp. 2d 30, 42-43 (D.D.C. 2013) (same); see also JohnR. 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 warrant extending a limitations period"). - 8 -Therefore, the Court correctly denied Plaintiffs' requests for equitable tolling. C. Amending the Complaint Plaintiffs request the opportunity to amend their Complaint priorto dismissal of the time-barredchaplains. Pls.' Mot. at 11. Plaintiffs contend that amendment of the Complaint "to further specify and clarify their continued injuryby successive failures of selection ("FOS") and bias in the Reserves" will allow six chaplains to continue as plaintiffs. Id. Plaintiffs' argument is unavailing. The Consolidated Complaint was filed in October 2012 and is over 200 pages long, including a 75 page appendix of very detailed information of the claims for eachplaintiff. Any claims Plaintiffs thought theyhad should have been included in the Consolidated Complaint. Plaintiffs argue that they didnot include subsequent FOS by various boards because they thought it unnecessary under D.C. Circuit law and the law of the case. Pls.' Mot. at 11. Necessary
ornot, Plaintiffsmade a conscious decisionnot to include all of their claims inthe ConsolidatedComplaint or to seekamendment at
an earlier date. Although Plaintiffs may regret their decision to omit claims by these six plaintiffs now that their claims have been dismissed, that is not sufficient reason to permit them to amend their Complaint to assert the previously omitted claims. - 9 -Plaintiffs also contend that twelve chaplains should have been permitted to join Adair v. England as additional plaintiffs in 2002-03, and had theybeenpermitted to do so, they would fall withinAdair's statuteof limitations. Pls.' Mot. at 14. Plaintiffs wish to file a motion "addressing the Court's failure to allow additionalplaintiffs tojoinin2002-03," but at nopointdo they state what the motion will consist of or what relief they will seek. See Pls.' Mot at 14-15, 17; Pls.' Reply at 2-6. GivenPlaintiffs' lackof specificityforwhytheCourt should further delay dismissing the twelve chaplains who purportedly sought tojointhe Adair case in 2002, the Court sees no reason to withhold dismissal of those plaintiffs whose claims are timebarred. IV. CONCLUSION For the foregoing reasons, Plaintiffs' Motion for Modification and/or Clarification of the Court's Decision to Dismiss Certain Plaintiffs under the Statute of Limitations shall be denied. An Order shall accompany this Memorandum Opinion.

February 9, 2016 GladySKeSer United States District Judge
Copies to: attorneys on recordvia ECF

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