IN RE: NAVY CHAPLAINCY

Filing 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, )

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

non-denominational

Protestant
Christian

chaplains,
evangelical

and

a

fellowship

churches,

bring

of

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

Amendment’s

Due

Process

Clause,

violated
authority

the

Establishment

over

personnel

Clause

decisions

component
and
by
to

that

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 Background 2

A.

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

endorsing

agency

endorsement’

certifying

from
the

that

a

faith

group

individual

is

professionally qualified to represent that faith group within
the Chaplain Corps.” In re Navy Chaplaincy, 697 F.3d at 1173.
Chaplaincy
Churches

of

are

Full
two

Gospel

such

Churches

endorsing

and

agencies

Associated
and

are

Gospel

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

retirement.”

Id.

recommended

for

active

duty;

Chaplains,
promotion

like

by

and

(3)

all

‘selection

Navy

selective
officers,

boards’

early
“are

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

Chaplaincy,

841

F.

personnel
Supp.

2d

decision
336,

making.”

re

Navy

(D.D.C.

341

In

2012).

More

specifically, Plaintiffs allege that “the Navy’s selection board
process
Catholic

results
and

in

denominational

liturgical

chaplains

favoritism
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, 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,

increments.”

Pls.’

ranging
Mot.

from

for

0

Prelim.

- 4 -

to

100

Inj.

in
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, 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,

- 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

challenges

to

raised
the

“substantially

Navy

Chaplaincy

similar
program”

constitutional
and

accordingly

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

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

“[a]lthough

Chaplaincy,
the

697

[District]

F.3d

at

[C]ourt

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

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

6

that

plaintiffs

have

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
Court’s

irreparable

conclusion

that

harm”
the

and

agreed

balance

of

with

the

the

equities

District
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

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
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’
analysis,

statistical
which

evidence

they

claim

and

offer

their

demonstrates

own

that

no

expert
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

- 10 -

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. No. 124, later amended]
setting numerous deadlines in order to move the case towards
resolution.
4. Record Considered in Resolving Plaintiffs’ Motion
On
opinion

November
on

2,

2012,

Plaintiffs’

the

Motion,

Court

of

reversing

Appeals
and

issued

its

remanding

for

further proceedings. On November 19, 2012, this Court ordered
the parties to submit a joint statement identifying those briefs
and

exhibits

considered

on

they
remand

believed
in

constituted

resolving

8

the

Plaintiffs’

record
Motion.

to

be

Order

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,

parties

filed

filings,
which

2012)

[Dkt.

their

briefings

they

No.

joint
and

agreed

143].

On

statement

exhibits

constituted

on
the

December

21,

identifying,
four

2012,

among

dispositive

relevant

the

other

motions,

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

interest.” Winter, 555 U.S. at 20.

- 12 -

is

in

the

public

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

- 13 -

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

compelling

purpose,”

are

not

and

narrowly

therefore

tailored

“fail

to

all

achieve

a

Establishment

Clause tests and result in unequal treatment for all chaplains.”
Id.
Defendants respond that liability for discrimination based
upon

religion

cannot

“be

predicated

- 14 -

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 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

- 15 -

discrimination

alleged

was

intentional. 9 Defendants argue that Plaintiffs must prove that
the

Navy

intentionally

liturgical

Christian

adopted

control

policies

over

the

designed

Chaplain

to

maintain

Corps.

Defs.’

Mot. for Summ. J. at 10-11; see Defs.’ Opp’n to Pls.’ Mot. for
Prelim.
“argument

Inj.

at

26-31.

that

discrimination”

the
is

Plaintiffs

respond

plaintiffs

“inconsistent

must
with

that

Defendants’

show

intentional

Establishment

Clause

precedent” and “contrary to the law of the case.” Pls.’ First
Mot. for Summ. J. Reply at 10.
a) Plaintiffs Bear the
Discriminatory Intent
The

Court

denominational
Navy

of

Appeals

preference

discriminates

recognized

theory,

against

Burden

that,

Plaintiffs

non-liturgical

of

Demonstrating

under

claim

their

that

Protestants

on

“the
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, 54041 (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

- 17 -

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
(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

purposeful

is

“unexplainable

discrimination.

Village

on
of

grounds

other

Arlington

than”

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

- 18 -

Wo,

impact

alone

is

not

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

applicants,

but

ordinance
granted

waivers

waivers

to

to
all

over
but

one

200

Chinese

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

argument,

at

20-23.

Plaintiffs

In

support

heavily

rely

of
on

their
the

law

of

the

District

case

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
implies

[that]

respond
the

that

Court

“nothing

would

not

in

the

passage

require

a

.

.

showing

.
of

intentional discrimination (whatever that showing) in order to
demonstrate

denominational

preference”

- 20 -

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 1112,

reflects

decisions

in

a

misreading

this

case.

of

In

the

Adair

District
II,

Court’s
District

the

prior
Court

determined that, although policies that explicitly discriminate
on the basis of religion are subject to strict scrutiny, such
scrutiny
explicitly

should

not

be

discriminate

applied
on

the

to

policies

basis

of

that

religion

do

not

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

Clause,

on

the

discrimination.

had

stated

fact
See

a

that

id.

at

claim

under

Plaintiffs
56

the

Establishment

alleged

(“[P]laintiffs

intentional

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

control

over

designed

the

to

Chaplain

maintain

Corps.”)

liturgical

(emphasis

Christian

added);

id.

(“[Plaintiffs] have clearly alleged an intentional preference.”)
(emphasis added); id. at 57 (“[P]laintiffs clearly offer wellpled 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
Defendants Acted with Discriminatory Intent

that

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

Plaintiffs
alleged

clear
bear

from

the

“pattern

discriminatory

the

burden

of

of

past

intent.

precedent

discussed

demonstrating

discrimination”

Although

that
was

“[p]roof

above

that

Defendants’

motivated

of

by

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

a

direct

442

sensitive

evidence

of

at

279

purpose

inquiry
intent

n.24.
was

into
as

a

such

may

be

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

evidentiary

preference
expert,

theory

Dr.

is

Harald

statistical
denominations

basis
a

for

series

Leuba.

analysis

Plaintiffs’

of

reports

Plaintiffs

shows:

benefitted

“[1]

from

their

argue

denominational

written
that

[that]
position

by

Dr.
the

in

their

Leuba’s
Chiefs’

terms

of

promotions and accessions . . . [2] the Chief’s influence on the
Chaplain

Corps

denominational

rank

structure

favoritism

.

.

.

.
[4]

.
the

.

[3]

Navy’s

the

Navy’s

hierarchy

of

favorite denominations and their respective promotion rates . .
.

[and]

[5]

prejudice

against

Southern

- 24 -

Baptists

compared

to

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. 770894, 1977 WL 1032, at *18 (D.D.C. Aug. 1, 1977)).
Based

on

the

existing

Plaintiffs

have

provided

Defendants

intentionally

record,
no

the

evidence

discriminated

Court

finds

that

demonstrating

that

against

them.

The

statistics proffered by Plaintiffs, without more, are not even
minimally

sufficient

to

demonstrate

- 25 -

the

need

for

the

“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

demonstrate

a

need

to

show

likelihood

of

intentional
success

on

discrimination

the

merits

of

to

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
policies

no

evidence

“because

of,

that
not

Defendants
merely

in

adopted
spite

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

- 26 -

of”

the

challenged

their

adverse

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

Chaplains

is

of

a

different

certainly

Heights.

Plaintiffs’

promotion

rate

is

far

not

denomination

“stark”

demonstration
removed

from

as
of
the

as

defined
a

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

- 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

demonstrated

correctly

irreparable

assumed

harm”

and

that
it

saw

plaintiffs
no

error

have
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

injunction”)).

in

employing

Accordingly,

the

Plaintiffs

extraordinary
are

not

remedy

of

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.

February 28, 2013

_____/s/___________________
Gladys Kessler
United States District Judge

Copies to: attorneys on record via ECF

- 29 -