IN RE: NAVY CHAPLAINCY

Filing 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, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)

IN RE: NAVY CHAPLAINCY

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

)

_____________________________ )
MEMORANDUM OPINION

Plaintiffs,

current

and

former

non-liturgical

Protestant

chaplains in the United States Navy ("Navy"), endorsing agencies
for

non-liturgical

non-denominational

Protestant
Christian

chaplains,
evangelical

and

a

fellowship. of

churches,

bring

this

action against Defendants, Department of the Navy and several of
its officials.
against

them on

decisions
Clause

Plaintiffs allege that Defendants discriminated
the

basis

in violation of

of
the

religion when making
First Amendment's

and

the

equal

protection

Amendment's

Due

Process

Clause,

violated
authority

the

Establishment

over

personnel

Clause
decisions

component
and
by
to

that

personnel

Establishment

of

the

Fifth

Defendants

delegating
chaplains

also

governmental
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

1

Upon consideration of the Motion, Opposition [Dkt. No.

The District Court denied this Motion on January 30, 2012.
Plaintiffs appealed that judgment and the Court of Appeals
reversed and remanded for further proceedings. See infra Section

98],

Reply

[Dkt. No.

99],

and the entire record herein,

and for

the reasons set forth below, Plaintiffs' Motion is denied.
I .

BACKGROUND

Factual Background2

A.

Congress provided for the organization of the Navy Chaplain
Corps,

"whose

possess

specialized education,

the

spiritual

families."
2002)

needs

Adair

commissioned

in the

quotation

marks

to meet

omitted).

the Chaplain Corps

into four

"faith groups" :

non-liturgical

Worship. In re Navy Chaplaincy,

697

31,

35

Protestant,

F. 3d 1171,

who

Navy and their

(internal

Protestant,

183

serve

2d

liturgical

2012)

officers

training and experience

those who

England,

Naval

Supp.

I)

v.

of

are

F.

(Adair

divides

members

The

Navy

Catholic,

and

1173

(D.D.C.

Special

(D.C.

Cir.

0

The term "liturgical Protestant" refers to "those Christian
Protest~nt

denominations whose services include a set liturgy or

order of worship." Adair I,

183 F.

the

Protestant"

term

"non-liturgical

I.B. (setting out
matter) .

in detail

Supp.

2d at 36.
refers

the procedural

2

to

In contrast,
"Christian

background of

this

For a more detailed account of the facts in this case, refer to
Chaplaincy of Full Gospel Churches v. England, 454 F. 3d 290,
293-96 (D.C. Cir. 2006) and Adair v. England, 183 F. Supp. 2d
31, 34-38 (D.D.C. 2002) (Adair I).
-

2 -

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
have

order

an

to

become

a

'ecclesiastical

endorsing

agency

chaplain,

endorsement'

certifying

professionally qualified
the

Navy

to

Churches

of

are

Full
two

Gospel

such

must
group

the

individual

that

Churches

endorsing

faith

a

is

faith

Chaplain Corps." In re Navy Chaplaincy,

Chaplaincy

individual

from

that

represent

"an

and

agencies

group

within

697

F. 3d at

1173.

Associated
and

are

Gospel

among

the

Plaintiffs in this case. Id.
The

Navy

officers,
1172

the

including

(D.C.

.careers

uses

Cir.

personnel

chaplains.

2004).

to provide

same

That

In

system

critical personnel

continuation

on

active

retirement."

Id.

Chaplains,

for

promotion

England,

375

best

like

and
all

'selection

all
F.3d

to manage

of

its

1169,

officers'

qualified personnel

decisions:

duty;

by

for

"seeks

the Navy with the

through three

recommended

re

system

(1)

(3)

Navy

promotion;

selective

early

officers,

boards'

(2)

convened

"are
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:

chaplains

other

(citing

and

five
~

1401. 3A, Suppl.

officers.

Id.

two

SECNAVINST

1. c. (1) (f)) .

Plaintiffs allege that Defendants "discriminated against
[them]

on

the

basis

of

their

by

religion,

[]

establishing,

promoting and maintaining illegal religious quotas and religious
preferences

in

their

Chaplaincy,

841

F.

personnel
Supp.

2d

decision
336,

making."

In

Navy

2012).

(D.D.C.

341

re

More

specifically, Plaintiffs allege that "the Navy's selection board
process
Catholic

results
and

in

denominational

liturgical

favoritism

chaplains

while

that

advantages

disadvantaging

non-

liturgical chaplains" and that "this alleged systematic bias has
left non-liturgical chaplains underrepresented in the Navy." Id.
340.
Plaintiffs claim that,
" [c] haplain

promotion

depressing one of

five

under the selection board process,

board

members

buttons

in a

'vote
'sleeve'

the

record'

by

which hides

the

voter's hands, ensuring the secrecy of the vote" and that "[t]he
buttons coincide with degrees of confidence the voter has in the
record

considered,

increments."

Pls.'

ranging
Mot.

from

for

0

Prelim.

- 4 -

to

in

100

Inj.

at

25
4

degree

(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,
has

no

that

accountability,

in

every

under this promotion system,

their

[Navy

"[s] tatistical

Chaplain

Corps]

analysis

personnel

[]

which
shows

management

category that can be measured by data, the Navy has a preference
for

Catholics

first,

Liturgical

Protestants

second,

with non-

liturgical or Special Worship [faith group clusters] alternating
third and fourth." Id. at 4-5.
Plaintiffs

now move

for

a

preliminary

the Court to enjoin the Navy from " ( 1)
Chaplains

(the

board president;
accountability;
boards

without

'Chief')
(2)
and

or

his

the use of
(3)

Deputy

injunction,

asking

the use of the Chief of
as

chaplain

secret votes

selection

thereon with no

placing chaplains on chaplain selection

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
the

Court

can

evaluate

on

their

merits

the

partial

"until
summary

judgment (PSJ) motions pending before this Court." 3 rd. at 2.
B.

Procedural Background

This

dispute

involves

three

cases,

Gospel Churches v. England, Civ. No.

Chaplaincy

of

Full

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

complaint of over 85 pages,

filed

in

1999,

and

each

with

a

containing multiple constitutional

claims. On June 18, 2007, the District Court concluded that the
three

cases

challenges

to

raised
the

similar

"substantially

Navy

Chaplaincy

program"

constitutional
and

accordingly

consolidated the cases under the caption In re Navy Chaplaincy.
Order (June 18, 2007) at 3-4 [Dkt. No. 1].
On July 22, 2011, Plaintiffs filed the present Motion for a
Preliminary Injunction - which is their sixth such motion for
injunctive relief. 4 On August 26,

2011,

Defendants filed their

3

As discussed below, these motions are no longer pending. The
Court did not reach the merits of the motions, but denied them
See infra
without prejudice for case management purposes.
Section I.B.3.
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'
January 30,

motion

2012.

was

denied

by

the

District

See In re Navy Chaplaincy,

Court
Supp.

841 F.

on
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

standing,

III

reasoning that their asserted future injury was too speculative
because it rested on the assumption that chaplains sitting on
future

selection

affiliated with
the

court

found

boards
[their]

would

'necessarily

own denomination,'

implausible

given

that

favor

candidates

an assumption 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,
[Dkt. No. 154].
- 7 -

2013

injunction factors 6 weighed against granting injunctive relief."
In

re

Navy

"[a]lthough

Chaplaincy,
the

697

[District]

F. 3d

at

[C] curt

1175.

More

presumed

specifically,

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

weighed

the

public

interest

injunctive relief." Id.

against

granting

preliminary

(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
policies

that
will

"[P]laintiffs'
likely

non-speculative
then "review [ed]

to

support

in

that

discrimination

standing."

Id.

at

the
is

challenged
sufficiently

1177.

The

Court

the district court's ultimate decision to deny

injunctive relief,
injunction

result

allegation

as well as its weighting of the preliminary

factors [.]"

Id.

at

1178.

6

The

Court

concluded

that

In order to obtain a preliminary injunction, a plaintiff "must
establish [1] that [she] is likely to succeed on the merits, [2]
that [she] is likely to suffer irreparable harm in the absence
of preliminary relief, [3] that the balance of the equities tips
in [her] favor, and [4] that an injunction is in the public
interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008); see infra Section II (setting out in detail the
legal standard for injunctive relief) .
- 8 -

"the

district

demonstrated
Court's

court

correctly

irreparable

conclusion

that

harm"
the

assumed
and

that

agreed

balance

of

plaintiffs

with

the

the

have

District

equities

and

public interest weighed against granting the injunction.

the

Id. at

1179 (stating that "in assessing the balance of the equities and
the

public

interest,

we

must

judgment

of

military

professional

'give

great

deference

authorities'

to

the

regarding

the

harm that would result to military interests if an injunction
were

granted")

(quoting Winter v.

Natural

Res.

Def.

Council,

Inc., 555 U.S. 7, 24 (2008)).
Noting that the remaining issue was likelihood of success
on

the

district

merits,

the

court's

Court

conclusion

of

Appeals

that

saw

"no

plaintiffs

error

are

in

the

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
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 -

that

"their statistical analysis provides strong evidence of a

pattern of
Plaintiffs'
analysis,

discrimination."
statistical
which

they

Id.

at

evidence
claim

1180.

and

Defendants

offer

their

demonstrates

challenge

own

expert

no

that

such

discrimination exists. Id.
The Court of Appeals observed that "the district court made
no factual findings to resolve these competing claims" and that
"[a] 11 it had to say about the issue was this:
have

submitted no

that

the

future

evidence
promotion

from which the
boards

will

'the plaintiffs

court

follow

could assume
any

pattern of

alleged discrimination.'"

Id.

Chaplaincy,

841 F.

The Court then concluded

Supp.

2d at 346)).

(quoting

In

putative
re

Navy

that "[t]he district court's entirely conclusory statement gives
us no insight at all into whether the court perceived the defect
in the Establishment Clause claim to be legal or factual, or, if
factual, whether it thought the weakness lay in the evidence of
past

or future

Appeals

vacated

discrimination."
the

District

Id.

Accordingly,

Court's

denial

of

the

Court of

Plaintiffs'

Motion and remanded for further proceedings consistent with its
opinion.

- 10 -

3. Reassignment of the Case

On May 31, 2012, Judge Ricardo Urbina, who had handled this
dispute

since

2001,

retired

and

the

thereafter,

Calendar

Committee reassigned it to the undersigned Judge. Because of the
complexity of the procedural and constitutional issues raised,
which

the

decade,

parties

have

now

been

litigating

for

well

over

a

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

Management Order

(July 25,

setting numerous

deadlines

dispositive,

2012) 8

[Dkt. No.

and

issued

a

Case

124, later amended]

in order to move

the

case

towards

resolution.
4. Record Considered in Resolving Plaintiffs' Motion

On
opinion

November
on

2,

2012,

Plaintiffs'

further proceedings.

the

Motion,

Court

of

reversing

On November 19,

8

2012,

Appeals
and

issued

its

remanding

for

this Court ordered

Under the Case Management Order, as amended, the parties will
have fully briefed their cross-motions for summary judgment on
statute of limitations grounds by May 20, 2013. After deciding
those motions, the Court will, if necessary, set a briefing
schedule for comprehensive dispositive motions on the merits of
the constitutional issues raised by Plaintiffs.
- 11 -

the parties to submit a joint statement identifying those briefs
and

exhibits

they

considered

on

(Nov.

2012)

19,

parties

which

remand

filed

filings,

Statement

their

No.

and

12,

constituted

resolving

joint

agreed

(Dec.

in

[Dkt.

briefings

they

believed

143].

On

four

the

[Dkt. No.

December

record

21,

among

be

Order

2012,

dispositive

relevant

to

Motion.

identifying,

on

constituted
2012)

Plaintiffs'

statement

exhibits

the

the
other

motions,

record.

Joint

152]. The Court considered

that robust record for purposes of resolving Plaintiffs' Motion.
II.

LEGAL STANDARD FOR INJUNCTIVE RELIEF

A preliminary injunction is an "extraordinary and drastic
remedy," Munaf v. Geren, 553 U.S. 674, 689 (2008), and "may only
be awarded upon a clear showing that the plaintiff is entitled
to such relief,"
Cir.

2011)

555 U.S.
(1997)

Sherley v.

Sebelius,

644 F.3d 388,

(internal quotation marks omitted)

at 22);

see Mazurek v.

Armstrong,

392

(D.C.

(quoting Winter,
520 U.S.

968,

972

(noting that "the movant, by a clear showing, carries the

burden of persuasion").
A party
"[1]
[she]

that

seeking

[she]

a

preliminary

injunction

must

is likely to succeed on the merits,

establish
[2]

that

is likely to suffer irreparable harm in the absence of

preliminary relief,

[3] that the balance of the equities tips in

- 12 -

[her]

favor,

and

[4]

that

an

injunction

is

in

the

public

interest." Winter, 555 U.S. at 20.
In

the

past,

evaluated on a

these

four

factors

'sliding scale [,] '"

"have

such that

typically
"[i] f

makes an unusually strong showing on one of the
[she]

1288, 1291-92

Pension Benefit Guar.

the movant

factors,

does not necessarily have to make as strong a

another factor." Davis v.

been

then

showing on

Corp.,

571 F.3d

(D.C. Cir. 2009). However, the continued viability

of the sliding scale approach is uncertain "as the Supreme Court
and the D.C.
that

a

Circuit have strongly suggested,

likelihood of success on the merits

free-standing

requirement

Up for California!
12-2071,

that

a

likelihood

need not

a

is an independent,

preliminary injunction."

Dep't of the Interior,

at *6

(D.D.C. Jan.

29,

Nos.

2013);

Stand

12-309,
Sherley,

("[W]e read Winter at least to suggest if not to

standing requirement
[w]e

U.S.

2013 WL 324035,

644 F.3d at 393
hold

v.

for

without holding,

wade

for
into

of
a

success

is

an

independent,

free[but]

preliminary injunction

this

circuit

split

today.")

(internal

quotation marks omitted) .
Nor need this Court resolve this unsettled issue because a
preliminary injunction is not
less

demanding

"sliding

appropriate here,

scale"

framework.

- 13 -

See

even under the
Stand

Up

for

California!,
meet

2013 WL 324035,

the

less

demanding

fortiori,

they

cannot

at *6

("If the plaintiffs cannot

'sliding

satisfy

scale'

the

then

standard,

more

stringent

a

standard

alluded to by the Supreme Court and the Court of Appeals.").
III. ANALYSIS

Plaintiffs'

claims

rest

on

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,

submitted "suggests,
practices

result

in

the

expert

if not establishes,
clear

testimony
[that]

denominational

award of government benefits,

they

have

the challenged

preferences

in

the

advancing some denominations and

inhibiting others to the detriment of Plaintiffs[,]" Pls.' Mot.
for Prelim.

Inj.

at 17.

challenged

practices

compelling

purpose,"

Plaintiffs further contend that "[t] he

are
and

not

narrowly

therefore

tailored

"fail

all

to

achieve

a

Establishment

Clause tests and result in unequal treatment for all chaplains."
Id.

- 14 -

Defendants respond that liability for discrimination based
upon

religion

evidence

of

cannot

disparate

"be

predicated

impact

in

solely

favor

of

on

statistical

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

disparate

impact"

but did find

Plaintiffs'

claims

"serious flaws

and
in

found

no

[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

Plaintiffs

threshold
must

legal

show

issue,

that

the

- 15 -

the

parties

dispute

discrimination

whether

alleged

was

intentional. 9 Defendants argue
the

Navy

intentionally

liturgical
Mot.

Christian

that

adopted

control

Plaintiffs must prove that

policies

over

the

for Summ. J. at 10-11; see Defs.'

Prelim.

Inj.

"argument

at

that

discrimination"
precedent"

26-31.
the
is

Plaintiffs

Chaplain

to

maintain

Corps.

Defs.'

Opp'n to Pls.' Mot.

respond

plaintiffs

"inconsistent

designed

must
with

that

for

Defendants'
intentional

show

Establishment

and "contrary to the law of the case."

Clause

Pls.'

First

Mot. for Summ. J. Reply at 10.
a) Plaintiffs Bear the
Discriminatory Intent

The

Court

denominational
Navy

of

Appeals

preference

discriminates

against

Burden

recognized

theory,

that,

Plaintiffs

non-liturgical

basis of their religious denomination."

of

Demonstrating

under

claim

their

that

Protestants

on

"the
the

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")
denominational

(emphasis added) . Plaintiffs argue that their

preference

Fifth Amendment

theory

considerations.

raises

Pls.'

First

Mot.

Amendment

for Prelim.

and

Inj.

at

17-18.
Where,

as here,

contravention of
Court's]
prove

"the claim is

the

First

and

invidious discrimination in

Fifth Amendments,

Ashcroft

the

v.

defendant

Iqbal,

556

acted

U.S.

with

662,

520,

540-41

u.s.

229,

(1993)
240

the

traced

to

a

F.2d 1221,
clear

Hialeah,

Amendment));

see

also

added)

508 U.S.

Davis,

426

Personnel

256,

272

(1979)

if

neutral

law

has

disproportionately

a

a

racial

minority,

Protection Clause

1234 n.78

disproportionate

v.

Washington v.

only

discriminatory purpose.");

that

(emphasis

442 U.S.

upon

Equal

(Fifth

purpose."

Feeney,

("[E]ven

effect

under

made

(1976)

(2009)

Inc.

(First Amendment);

of Mass. V.

Amendment)

discriminatory

676

(citing Church of Lukumi Babalu Aye,

adverse

Supreme

decisions make clear that the plaintiff must plead and

that

Admin.

[the

(D.C. Cir. 1980)

it

is

if

that

unconstitutional

Brown v.

impact

can be

Califano,

627

("Supreme Court cases have

proof

of

discriminatory

impact,

is

necessary

to

intent,

not

establish

an

protection violation of constitutional dimensions.").

- 17 -

(Fourteenth

just
equal

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,
of

a

in exceptional cases, the disparate impact

facially neutral

factual

pattern

purposeful

is

plaintiffs'

Corp.,

to

429 U.S.

challenged government

carry

on

Village

of

252,

Fourteenth Amendment
failed

so severe

"unexplainable

discrimination.

Metro. Hous. Dev.

plaintiffs

policy may be

grounds

266

(1977)

burden

decision was

not

of

the

other

Arlington

claim was

their

that

clear
than"

Heights

v.

(holding that
viable

proving

because
that

the

motivated by discriminatory

intent) .
Such cases,
stark

as

that

determinative,

however,
in
and

are "rare" and "[a]bsent a pattern as

Gomilion
the

or

Court

Yick
must

Arlington Heights, 429 U.S. at 266
v.

Lightfoot,

shape of a

364 U.S.

city from a

the effect of

339

look

impact
to

alone

other

(emphasis added).

(1960),

square to a

removing from the

Wo,

a

not

evidence."
In Gomilion

local statute altered the
28-sided figure,

city all

- 18 -

is

but

which had

four of

its

400

African American voters,
Wo v. Hopkins,
denied

118 U.S. 356

building

applicants,

and not a single white voter.

but

(1886), a city board of supervisors

ordinance
granted

In Yick

waivers

waivers

to

all

but

Chinese

200

over

to

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,

442 U.S.

(2)

at 279,

or

Feeney,

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

Dismiss .
Inj.

Reply

argument,

argument

in

[their]

initial

2000 Motion to

which the Court rejected." Pls.' Mot. for Prelim.
at

20-23.

Plaintiffs

statement in Adair v.

In

support

of

heavily

rely

England,

17 F.

(Adair II) that:

- 19 -

their

on

the

Supp.

law

of

District
2d 7

the

case

Court's

(D.D.C.

2002)

[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.

F. Supp.
J.

at

for Prelim.

Inj.

Reply at 21

(quoting Adair II,

2d at 14-15); see Pls.' Opp'n to Defs.' Mot.

11

(same) ;

Pls.'

Second Mot.

for

Summ.

J.

217

for Summ.

Reply

at

9

(same) .
Defendants
implies

[that]

respond
the

that

Court

"nothing
would

not

in

discrimination

(whatever that

demonstrate

denominational

preference"

one of

intentional discrimination."

for Prelim.

Inj.

at 28;

see Defs.'

a

showing)

and

that

showing

of

in order to
"it

is

clear

claim on this front to be
Defs.'

Mot.

Defs.' Mot. for Summ. J. Reply at 5-6.

- 20 -

passage

require

intentional

that the Court understood Plaintiffs'

the

Opp' n

for Summ.

to Pls.'

Mot.

J. at 10-11;

Plaintiffs'
argument

that

contention

that

Plaintiffs must

discriminatory

intent

to

"Adair

II

the

rejected"

show that Defendants acted with

prevail

on

their

First

and

Fifth

Amendment claims, Pls.' Opp'n to Defs.' Mot. for Summ. J. at 1112,

reflects

decisions

a

in

misreading

this

determined that,

case.

of

In

the

Adair

District
II,

Court's
District

the

prior
Court

although policies that explicitly discriminate

on the basis of religion are subject to strict scrutiny,
scrutiny

should

explicitly

not

be

discriminate

applied
on

the

to

policies

basis

of

that

do

religion

such
not

unless

"[P]laintiff[s] can demonstrate after discovery that some or all
of

the Navy's policies and practices

preference[.]"

Adair

II,

217

F.

suggest

a

2d at

14.

Supp.

Court deferred "addressing the parties'

denominational
The District

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,

discrimination

in

preference.

that

in

subject

to

And
law

reconsidered prior

Plaintiffs need not

order
any

of
to

to

case,

the

denominational

"[i] nterlocutory orders

case

final

demonstrate

show intentional

doctrine

judgment."

- 21 -

and

Langevine

v.

not

always

may

are

be

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)
(n[T]he law of the case doctrine leaves discretion for the Court
to reconsider its decisions prior to final judgment.").
Moreover,
intent

issue

the

District

in Adair

Court

I

had

already

ruling at

a

the

addressed

the

early motion to

dismiss stage, delivered only months before Adair II. Therefore
Plaintiffs were on notice of the District Court's view of nthe
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
that

Plaintiffs

Clause,

on

had

the

discrimination.

stated

fact
See

a

that

id.

claim

under

Plaintiffs

at

56

the

ruling,

Establishment

alleged

(n[P]laintiffs

I

intentional

have

properly

asserted that the Navy intentionally hires liturgical protestant
chaplains

dramatically

out

of

proportion

representation among [Navy] personnel.")
56

n. 24

( n [P] laintiffs

adopted

policies

control

over

the

allege

designed
Chaplain

that

to

the

maintain

Corps.")

from

their

overall

(emphasis added) ; id at
Navy has

deliberately

liturgical
(emphasis

Christian

added) ;

id.

(n[Plaintiffs] have clearly alleged an intentional preference.")
(emphasis added);

id.

at 57

( n [P] laintiffs clearly offer well-

- 22 -

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

minimizing their future influence.")

promotion and

(emphasis added)

(citation

omitted).
Thus,

far from rejecting the argument that Plaintiffs must

prove

intent,

Adair

I,

the law of the case,

recognizes

that

the

as clearly articulated in

central

theory

of

Plaintiffs'

Establishment Clause claim rested on their being subjected to
intentional discrimination.
2. Plaintiffs
Demonstrate
Have
Failed
to
Defendants Acted with Discriminatory Intent

The Court of Appeals pointed out that
are

likely to

succeed on the merits

preference theory]
showing of

a

-

[of

that

"whether plaintiffs
their denominational

turns on whether they have made a strong

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

Plaintiffs
alleged

clear
bear

"pattern

from

the
of

the

burden
past

precedent
of

discussed

demonstrating

discrimination"
- 23 -

above

that
was

that

Defendants'

motivated

by

discriminatory

intent.

Although

"[p] roof

of

discriminatory

intent must necessarily usually rely on objective factors
[t]he

inquiry

"Determining
motivating

is

practical."

whether
factor

circumstantial

Feeney,

invidious

demands

and

U.S.

discriminatory
sensitive

a

direct

442

evidence

at

279

purpose

inquiry
intent

of

n.24.
was

such

into
as

a

may

be

available." Arlington Heights, 429 U.S. at 266.
The

evidentiary

preference
expert,

theory

Dr.

is

Harald

statistical
denominations

basis
a

series

Leuba.

analysis

denominational

rank

reports
argue

denominational

written
that

shows:

benefitted

Corps

of

Plaintiffs
" [ 1]

[that]

from

their

position

promotions and accessions
Chaplain

Plaintiffs'

for

by

Dr.

Leuba's
Chiefs'

the
in

their

terms

of

[2] the Chief's influence on the

structure

[3]

favoritism

[4]

the

Navy's

the

Navy's

hierarchy of

favorite denominations and their respective promotion rates
[and]

[5]

prejudice

against

Southern

other denominations with Chiefs."

Pls.'

Baptists
Mot.

compared

for Prelim.

to

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

- 24 -

establish a clear and compelling legal right thereto based upon
undisputed

facts,"

(D.D.C. 1984)
Inc.,

366

Belushi

v.

Woodward,

598

F.

Supp.

36,

37

(citing Rosemont Enterprises, Inc. v. Random House

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

success on the merits."
at 345
Urban

(D.D.C. Nov.

14,

No.

substantial

In re Navy Chaplaincy,

(citing Suburban Assocs.
Development,

a

841 F.

of

Supp. 2d

Inc. v. U.S. Dep't of Housing &

05-00856HHK,

2005); SEC v.

likelihood

2005

WL

3211563,

at

*10

Falstaff Brewing Corp.,

No.

77-

0894, 1977 WL 1032, at *18 (D.D.C. Aug. 1, 1977)).
Based

on

the

existing

Plaintiffs

have

Defendants

intentionally

provided

no

evidence

discriminated

statistics proffered by Plaintiffs,
minimally

sufficient

to

the

record,

Court

finds

that

demonstrating

that

them.

The

against

without more,

demonstrate

the

are not even

need

for

the

"extraordinary and drastic remedy" of a preliminary injunction.
Munaf, · 553

U.S.

at

contention that Dr.
not establishes,

689.
Leuba' s

Even

if

we

accepted

statistical analysis

Plaintiffs'

"suggests,

if

[that] the challenged practices result in clear

denominational preferences in the award of government benefits,"

- 25 -

Pls.'

Mot.

for Prelim.

Inj.

at 17,

Plaintiffs still would not

have met their burden of demonstrating probable success on the
merits

because

alleged

they made

pattern

of

no

past

attempt

to

show that

discrimination

was

Defendants'

motivated

by

discriminatory intent.
Instead,
they

do

Plaintiffs repeatedly, and incorrectly, argue that

not

demonstrate

need

a

to

show

likelihood

of

intentional
success

denominational preference theory,
them

to

put

forward

on

discrimination

the

merits

of

to

their

and that it is sufficient for

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.'
J.

Mot.

Reply at

proffered
policies

for Summ.

9.

no

J.

at 11; Pls.'

Second Mot.

for Summ.

Plaintiffs misunderstand their burden and have

evidence

"because

of,

that
not

Defendants
merely

in

adopted
spite

the

of"

challenged

their

adverse

effect on Plaintiffs. Feeney, 442 U.S. at 279
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

other

than"

their

purposeful

statistics

is

"unexplainable

discrimination.

- 26 -

Arlington

on grounds

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

candidates were selected for promotion.
Inj.

at

8.

In

contrast,

Dr.

83.3%

Chaplains,

Leuba

Pls.'

also

Mot.

found

of

those

for Prelim.
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

Chaplains

is

of

a

different

certainly

Heights.

Plaintiffs'

promotion

rate

is

far

not

denomination

"stark"

demonstration
removed

from

as
of

as

defined
a

the

10%
pattern

the
in

Chief

Arlington

difference
in

of

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

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.

- 27 -

B.

Evaluation of the Preliminary Injunction Factors

As noted above,
district

court

demonstrated

the Court of Appeals concluded that

correctly

irreparable

assumed

harm"

and

that
it

saw

"the
have

plaintiffs
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

against

discriminated

Moreover, as the District Court previously observed,
plaintiffs'

claims might

ultimately

vindicated

demonstrate

that

an

would

be

military personnel
Supp.
507-08

2d at

349

(1986);

an

"[a]lthough

irreparable
have

plaintiffs

injunction would not

third parties" and "[they]
interest

demonstrate

them.

injury if
failed

to

substantially injure

have failed to show that the public

furthered

by

decisions."

In

the
re

(citing Goldman v.

Weinberger v.

court's

Navy Chaplaincy,
Weinberger,

Romero-Barcelo,

- 28 -

intrusion

841

475 U.S.

456 U.S.

into

305,

F.

503,
312

( 1982)

(noting that courts must "pay particular regard for the

public

consequences

injunction")).

in

employing

Accordingly,

the

extraordinary

Plaintiffs

are

of

entitled

not

remedy

to

Reply,

and

injunctive relief.

IV.

CONCLUSION

Upon consideration of

the Motion,

Opposition,

the entire record herein, and for the reasons set forth in this
Memorandum

Opinion,

Plaintiffs'

Motion

for

a

Preliminary

Injunction is denied.

February 28, 2013

Gladys Ke ler
United States District Judge

Copies to: attorneys on record via ECF

- 29 -