In Re: Navy Chaplaincy ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
)
IN RE: NAVY CHAPLAINCY ) Case No. 1:07-mc-269 (GK)
)
______________________________)
AMENDED MEMORANDUM OPINION
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 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.
1
The District Court denied this Motion on January 30, 2012.
Plaintiffs appealed that judgment and the Court of Appeals
reversed and remanded for further proceedings. See infra Section
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 Background 2
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. 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
I.B. (setting out in detail the procedural background of this
matter).
2
For a more detailed account of the facts in this case, refer to
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290,
293-96 (D.C. Cir. 2006) and Adair v. England, 183 F. Supp. 2d
31, 34-38 (D.D.C. 2002) (Adair I).
- 2 -
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
- 3 -
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)).
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
- 4 -
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 non-
liturgical 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,
- 5 -
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 filed their
3
As discussed below, these motions are no longer pending. The
Court did not reach the merits of the motions, but denied them
without prejudice for case management purposes. See infra
Section I.B.3.
4
The District Court denied all five of Plaintiffs’ previous
motions for preliminary injunctive or similar emergency relief.
- 6 -
Opposition to Plaintiffs’ Motion, and on September 12, 2011,
Plaintiffs’ filed their Reply in support of their Motion.
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
5
The Court of Appeals issued its Mandate on January 18, 2013
[Dkt. No. 154].
- 7 -
injunction factors 6 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
6
In order to obtain a preliminary injunction, a plaintiff “must
establish [1] that [she] is likely to succeed on the merits, [2]
that [she] is likely to suffer irreparable harm in the absence
of preliminary relief, [3] that the balance of the equities tips
in [her] favor, and [4] that an injunction is in the public
interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008); see infra Section II (setting out in detail the
legal standard for injunctive relief).
- 8 -
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 (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.
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
7
Under this theory, Plaintiffs claim 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.
- 9 -
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
- 10 -
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. 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
8
Under the Case Management Order, as amended, the parties will
have fully briefed their cross-motions for summary judgment on
statute of limitations grounds by May 20, 2013. After deciding
those motions, the Court will, if necessary, set a briefing
schedule for comprehensive dispositive motions on the merits of
the constitutional issues raised by Plaintiffs.
- 11 -
(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, 553 U.S. 674, 689 (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); see Mazurek v. Armstrong, 520 U.S. 968, 972
(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.
- 12 -
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, Nos. 12-309,
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, free-
standing 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!, 2013 WL 324035, at *6 (“If the plaintiffs cannot
meet the less demanding ‘sliding scale’ standard, then a
- 13 -
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
- 14 -
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 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 [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
- 15 -
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
9
The parties debate this point in the briefs on Plaintiffs’
instant motion, see Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj.
at 26-31; Pls.’ Mot. for Prelim. Inj. Reply at 20-23, as well as
in several of the parties’ merits briefs, see Defs.’ Mot. for
Summ. J. at 10-11 [Dkt. No. 46]; Pls.’ First Mot. for Summ. J.
Reply at 7-10 [Dkt. No. 50]; Pls.’ Opp’n to Defs.’ Mot. for
Summ. J. at 10-17 [Dkt. No. 56]; Defs.’ Mot. for Summ. J. Reply
at 4-6, 10 [Dkt. No. 68]; Pls.’ Second Mot. for Summ. J. Reply
at 8-9 [Dkt. No. 70].
- 16 -
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”).
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 (2009) (emphasis added) (citing
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-
41 (1993) (First Amendment); Washington v. Davis, 426 U.S. 229,
240 (1976) (Fifth Amendment)); see also Personnel Admin. of
Mass. V. Feeney, 442 U.S. 256, 272 (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
- 17 -
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(emphasis added) (quoting Feeney, 442 U.S. at 279).
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 (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 Gomilion or Yick Wo, impact alone is not
- 18 -
determinative, and the Court must look to other evidence.”
Arlington Heights, 429 U.S. at 266 (emphasis added). In Gomilion
v. Lightfoot, 364 U.S. 339 (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 (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 adopted “because of, not
merely in spite of” its adverse effect on Plaintiffs, Feeney,
442 U.S. at 279, or (2) demonstrate disparate impact “as stark
as that in Gomilion or Yick Wo,” Arlington Heights, 429 U.S. at
266.
b) The Law of the Case Doctrine Does Not Relieve
Plaintiffs of Their Burden to Demonstrate
Discriminatory Intent
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
- 19 -
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, 17 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
Navy policies “suggest[] ‘a denominational preference
. . . .’” County of Allegheny, 492 U.S. at 608-09
(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
- 20 -
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.
Defendants are correct that these passages do not imply, no
less clearly state, that Plaintiffs need not show intentional
- 21 -
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
- 22 -
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 (“[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 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
- 23 -
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.
“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.
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
- 24 -
other denominations with Chiefs.” Pls.’ Mot. for Prelim. Inj.
Reply at 11 (citations omitted).
Because a preliminary injunction is an “extraordinary and
drastic remedy,” Munaf, 553 U.S. at 689, 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 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)).
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
- 25 -
“extraordinary and drastic remedy” of a preliminary injunction.
Munaf, 553 U.S. at 689. 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
- 26 -
Moreover, the disparate impact demonstrated by Plaintiffs’
statistics is not nearly “as stark as that in Gomilion 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. 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 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 Gomilion,
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
- 27 -
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 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
- 28 -
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 (1986); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312
(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.
_____/s/___________________
February 28, 2013 Gladys Kessler
United States District Judge
Copies to: attorneys on record via ECF
- 29 -