IN RE: NAVY CHAPLAINCY
Filing
192
MEMORANDUM OPINION to the Order denying Plaintiffs' Motion for Class Certification. Signed by Judge Gladys Kessler on 9/4/14. (CL, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
IN RE: NAVY CHAPLAINCY
Case No. 1:07-mc-269 (GK)
----------------------------~>
MEMORANDUM OPINION
Plaintiffs,
65 current and former nonliturgical Protestant
chaplains in the United States Navy,
and
a
fellowship
churches
the
of
non-denominational
("PlaintiffS'") ,
Department
of
("Defendants") .
against
their endorsing agencies,
Christian
evangelical
bring this consolidated action against
the
Navy
and
several
of
its
officials
Plaintiffs allege that Defendants discriminated
non-liturgical
Protestant
chaplains
on
the
culture of denominational
basis
of
religion,
maintained a
favoritism in
the Navy,
and infringed on their free exercise and free speech
rights.
This matter is before the Court on Plaintiffs'
Class Certification
Motion,
Reply
entire
Opposition
[Dkt.
No.
record
[Dkt.
[Dkt.
170],
herein,
No.
No.
Upon consideration of the
147] .
156] ,
Reply
Sur-Sur-Reply
and
for
the
Plaintiffs' Motion shall be denied.
Motion for
[Dkt.
[Dkt.
reasons
No.
No.
set
160] ,
178],
forth
and
Surthe
below,
I .
BACKGROUND
A.
1
The Navy Chaplain Corps
The Navy employs a corps of chaplains
"CHC")
Marines
and
ethical issues.
advise
counseling,
commanders
In re England,
(citations omitted).
2004)
Chaplains
to meet the religious needs of its members.
provide religious education,
and
("Chaplain Corps" or
and support to sailors
on
religious,
3 75 F. 3d 1169,
moral,
and
(D.C.
Cir.
1171
The role of a chaplain "within the
service is 'unique,' involving simultaneous service as clergy or
a
'professional
denomination
representative[]'
and
as
(citations omitted)
have a
a
of
commissioned
a
particular
naval
officer."
To serve these dual roles,
and
educational
requirements
Id.
chaplains must
graduate level theology degree or equivalent,
physical
religious
applicable
meet
the
to
all
commissioned officers, and be endorsed by an endorsing agency as
qualified to represent a particular faith group.
Id.
at 1171-
72.
There
Department
are
of
over
Defense,
100
faith
which
the
groups
Navy
has
recognized
grouped
by
the
into
four
"faith group categories" for purposes of organizing the Chaplain
Corps:
Roman
Catholic,
Liturgical
1
Protestant,
Non-liturgical
The Court assumes familiarity with the extensive record of the
case, which includes more than twenty written decisions by this
Court and the Court of Appeals.
-
2 -
Protestant,
and
F.3d 1171,
1173
The
Special
(D.C.
Liturgical
denominations
Reformation,
liturgy;
Cir.
that
trace
Presbyterian
their
consists
origins
baptism,
In
re
Navy Chaplaincy,
697
("In re Navy Chaplaincy I").
Lutheran,
faiths.
re
category
infant
includes
In
2012)
Protestant
practice
it
Worship.
of
the
to
Protestant
Protestant
and follow a
Episcopal,
England,
Methodist,
375
~
Consolidated Complaint ("Consol. Compl.")
prescribed
F.3d
6(b)
and
at
1172;
[Dkt. No. 134].
The Non-liturgical Protestant category is composed of Protestant
denominations
follow
a
that baptize at
formal
Pentecostal,
England,
Worship
the
liturgy;
Bible
it
Church,
"age of reason"
includes
and
category encompasses
other
categories;
Jehovah's
Unitarian
it
all
Witness,
faiths.
England, 454 F.3d 290,
Jewish,
295 n.3
of
Evangelical,
faiths.
not
re
covered by
Hindu,
Science,
Full
In
The Special
6(c).
denominations
Christian
Chaplaincy
~
Compl.
includes
and do not
Baptist,
Charismatic
375 F.3d at 1172; Consol.
Muslim,
~
the
Buddhist,
Mormon,
Gospel
Churches
and
v.
(D.C. Cir. 2006); Consol. Compl.
6 n.5.
In order to maintain the requisite number of chaplains for
all
ranks
strength"),
plan"
(what
the
setting
the
Navy
Chaplain
forth
the
refers
Corps
number
to
creates
of
- 3 -
as
an
officers
"authorized
annual
it
end
"accessions
can
bring
on
active duty that fiscal year.
Theriot,
CHC,
USN
("Theriot Decl . " )
also SECNAVINST 1120.4A(5).
process
of
Declaration of Captain Gene P.
bringing
a
accessions
qualified
population,
are
but
also
Candidate Program,
Consol. Compl.
~
Chaplain
2
[Dkt .
No.
2 9- 6] ;
see
The term "accession" refers to the
individual
Corps as a commissioned officer.
Corps
~
drawn
from
into
the
Chaplain
2.
Chaplain
the
civilian
community,
Chaplain
~
Theriot Decl.
from
primarily
the
reserve
and inter-service transfers.
Id.;
see also
44(c).
applications
Appointment Recall
are
reviewed
by
"Chaplain
a
and Eligibility Advisory Group"
commonly referred to as a "CARE" board.
or what
Theriot Decl.
~
is
The
3.
CARE board reviews chaplain applications and recommends certain
applicants
to
the
to:
consideration
endorsement,
the
academic
education,
of
and
or
considering
performance,
deportment,
professional
the
CARE
Chaplains,
existence
professional
reputation
personal
Chief
ministry
interview
of
"giving
ecclesiastical
an
graduate
theological
professional
experience,
results
and
recommendation."
board's
particular
recommendations,
Id.
the
letters
of
After
Chief
of
Chaplains forwards his or her recommendations for accession to
the Commander of
the Navy Recruiting Command or the Chief of
Naval Personnel for final approval/disapproval.
-
4
-
Id.
After
accession,
personnel
system
officers,
are
intervals.
chaplains
as
other
required
to
are
naval
be
promoted
If
a
chaplain
is
considered
promotion to the next higher rank,
"failed of selection."
F.3d at
293.
chaplain
to
risk
of
"selective early retirement."
Navy may,
however,
but
not
promotion,
selected
§
for
he or she is said to have
failures
of
selection subject
involuntary
separation,
See 10 U.S.C.
§
454
the
known
as
The
632 (a)- (b).
elect to continue a chaplain on active duty
the needs of the Navy so require.
of
regular
(citing 10 U.S.C.
despite two or more failures of selection if,
Each
at
other
Chaplaincy of Full Gospel Churches,
Two or more
the
like
rank
in
same
the
and,
officers
In re England, 375 F.3d at 1172
611 (a)) .
to
subject
these
decisions
selective
early
See id.
regarding
§
a
632(c) (2).
chaplain's
and
retirement,
in its judgment,
career
continuation
on
active duty - is made by a selection board composed of officers
superior
in
England,
375
rank
F.3d
to
at
the
person under
1172.
The
consideration. 2
selection
board
In
re
process
is
governed by statute and regulations prescribed by the Secretary
of
Defense.
See
10
U.S.C.
§§
611,
2
612.
Under
the
current
Selection board rules and processes differ according to the
rank and type of personnel decision under consideration.
See
generally 10 U.S.C. §§ 611, 612. Unless otherwise stated, the
Court uses the term "selection board" to refer generically to
all boards convened for the purpose of considering a change to a
naval officer's employment status.
- 5 -
regulations,
members,
chaplain
selection
(D.C.
Cir.
Chaplains
2013)
or one
board president."
B.
composed
In re Navy Chaplaincy,
("In
SECNAVINST 1401.3A, Encl.
of
are
of
seven
two of whom are chaplains "nominated without regard to
religious affiliation."
427
boards
of
re
Chaplaincy
~
l.c. (1) (f))
two
deputies
(1),
his
Navy
738 F.3d 425,
I I I")
(citing
"Either the Chief
serves
as
selection
Id.
Plaintiffs' Claims
Plaintiffs
are
65
current
and
Non-liturgical
former
Protestant chaplains who have collectively served in more than
fifty different naval command stations worldwide during the past
four decades, 3 their endorsing agencies, and a fellowship of nondenominational Christian evangelical churches.
They allege that
"the Navy has violated their constitutional and statutory rights
by establishing a pervasive culture of hostility,
animosity and
prejudice towards themselves and their class" manifested by:
"a
pattern
Christian
( 2)
of
"procedures
preferences
favoring
Liturgical
Non-liturgical
Christian
chaplains";
religious
chaplains
over
that
(1)
allow
and
encourage
denominational
preferences in the award and denial of government benefits"; and
3
Among other locations, Plaintiffs served in Florida, Italy,
Japan,
Guam,
South
Carolina,
North
Carolina,
Wisconsin,
Virginia, California, Iraq, Lebanon, Georgia, Texas, Maryland,
Washington, the District of Columbia, Texas, New York, Saudi
Arabia,
the Aleutian Islands, and Somalia.
See generally
Consol. Compl., Addendum A [Dkt. No. 134].
- 6 -
( 3)
"hostility
toward
worship practices."
They
expert,
Dr.
Non-liturgical
speech
religious
and
Mot. at 5.
contend
that
Harald R.
a
statistical
Leuba,
Ph.D.,
examination
by
demonstrates that
their
"[e]very
dimension of personnel management which can be illuminated with
data
shows
the CHC' [s]
that
~
Plaintiffs'
divide
are
disadvantaged by
42.
Consolidated
collectively
separate counts,
distinct.
chaplains
policies and practices of religious preference [.]"
Consol. Compl.
"Addendum"
Non-liturgical
exceed
200
pages
and
and
accompanying
contain
sixteen
many of which are not conceptually or legally
For purposes
their
Complaint
claims
of
into
this
Motion,
three
it
is
overarching
sufficient
categories,
to
as
follows. 4
First,
they attack a number of facially neutral personnel
practices, both current and historical, which they believe have
allowed religious bias
to infect
selection board outcomes and
led to discriminatory personnel decisions.
challenge:
(1)
the
small
size
of
Specifically,
selection
boards;
(2)
they
the
placement of two chaplains on each board, one of whom is either
4
The Court limits its discussion
contentions at issue in this Motion
Plaintiffs' claims according to the
rather than the particular numerical
Complaint.
-
7 -
to the
and, in
type of
scheme
factual and legal
so doing, analyzes
alleged violation,
in the Consolidated
the Chief of Chaplains or one of his or her deputies;
the
use
of
"secret voting"
procedures
and
( 3)
in which board members
anonymously indicate their degree of confidence in a candidate,
a process Plaintiffs contend "enables each board's chaplains to
ensure that
a
particular candidate will not be promoted,
increasing
the
odds
results."
In re Navy Chaplaincy III,
~
Consol. Compl.
for
their
preferred
(and
thus
discriminatory)
738 F.3d at 428; see also
95(c).
Plaintiffs also take issue with the fact that until 2002,
"each selection candidate's three-digit
code
'faith group identifier'
was prominently displayed throughout
the selection
board process[,]" which they claim had no purpose other than "to
identify a candidate's faith group to the board" for purposes of
permitting
the
chaplain
board
members
"to
exercise
their
individual or faith group prejudice .
, particularly against
Non-liturgical chaplains."
~~
Second,
religious
Consol. Compl.
Plaintiffs assert that,
quotas
or
"goals"
86-87.
until 2001,
for
apportioning
opportunities among the faith group categories.
~~
33-35.
the Navy used
chaplain
Consol.
Compl.
In particular, they claim that between 1986 and 2001,
the Navy had a so-called "Thirds Policy" under which it reserved
thirty-five
Protestants,
percent
of
thirty-five
chaplain
percent
- 8 -
accessions
to
to
Liturgical
"Non-liturgical
faith
groups,"
Consol.
until
and
thirty
~~
Compl.
2002,
number
of
33,
35,
to
43.
"Others,"
selection
of
"2
board
RC"
seats
and
"stacking"
including
Catholics.
They also claim that
Defendants maintained a
(the so-called
purpose
percent
"1
policy of
for
RC"
Roman
from 1977
reserving a
Catholic
policies),
set
chaplains
allegedly for
selection board proceedings
in
the
favor
of
Roman Catholic and Liturgical Protestant chaplains despite their
declining
~~
numbers
in
the
broader
population.
Consol .
Compl .
57 (e)- (g)
Third,
the
in
the
individual
"Addendum"
chaplain
fact-specific
claims
exercise violations
to
their Consolidated Complaint,
Plaintiffs
asserting
advance
equal
a
laundry
protection
they purportedly suffered while
chaplains in the Navy.
list
and
of
free
serving as
These consist of highly individualized
allegations that they were,
at different points in time and in
different
(1)
command
transferred,
based
on
(2)
respect
selective
reports,
removed
their
teachings;
with
or
centers:
faith
treated
to
early
and/or
from
or
retaliated
their
by
of
differently
retirement,
employment
Liturgical services; and
posts
content
the
disciplinary
(4)
against,
from
issues,
recall
benefits;
criticized,
superior officers
their
religious
Liturgical
chaplains
promotion,
to
active
(3)
made
retention,
duty,
to
fitness
officiate
at
subjected to general policies that,
- 9 -
while not facially discriminatory, disfavored certain aspects of
their worship
184 (kk)
traditions.
Addendum A. 5
&
policies,
and
See,
e.g. ,
Consol.
rights
procedures
Religious
2000bb,
under
Freedom
et seq.
the
and
~~
17 8-
They claim that each of the practices,
they
challenge
enabled
other chaplains to discriminate against them,
their
Compl.
First
and
Restoration
Fifth
Act
Amendments
Compl.
permitted
thereby violating
( "RFRA") ,
See generally Consol.
or
~~
42
and
the
U.S. C.
29-131,
§
141-
164.
Plaintiffs seek sweeping injunctive and declaratory relief
that
would
place
this
Court
in
an
essentially
perpetual
oversight role with respect to the Navy's personnel practices.
Such
remedies
to
repair purported damage to each and every chaplain's career,
as
well
relief
as
what
includes
both
Plaintiffs
individually-tailored
refer
to
as
"fundamental
reform,"
requiring the Navy to adjust its hiring and retention policies
to
Mot.
match
at
religious
38.
Their
representation
requested
in
the
remedies
greater
include,
population.
but
are
not
limited to:
5
For example, Plaintiffs allege that some "senior chaplains have
insisted on rotating chaplains through .
. services instead of
assigning a
chaplain as
a
'pastor'
for
a
congregation,
reflecting the liturgical viewpoint that the liturgy satisfies
the congregation's worship need, rather than the Non-liturgical
view that good biblical preaching, music, and praise and worship
comprise the worship experience[.]" Consol. Compl. ~ 150(b).
- 10 -
•
•
Reinstatement of separated Non-liturgical chaplains to
active duty "until such time as they have been reviewed by
legally constituted boards." Id. at 111.
•
An order requiring the Navy to "correct the records and
remove the prejudice from the affected Non-liturgical
chaplain's official career file,
take other necessary
actions to make plaintiffs whole, and take corrective
action to preclude further incidents of prejudice."
Id. at
118.
•
"Special compensation" for the named Plaintiffs "for the
expense, stress and hostility they have endured to bring
this action[.]" Id. at 120.
•
An order invalidating all of the challenged personnel
policies and requiring the Navy to "[d]evelop new policies,
guidelines, and regulations that [,]" among other things,
"officially record the religious preference of all Navy
personnel";
"[e]nsure
that
[Non-liturgical]
services
receive priority or become the main Christian service when
Non-liturgicals constitute a majority"; and adjust the
CHC's rank structure to reflect religious preference.
Id.
at 117-19 (emphasis in original) . 6
•
6
A judicial declaration voiding "all personnel actions" made
regarding Navy chaplains of any denomination since 1977.
Consol. Compl. at 119.
A court-ordered "system of checks and balances" monitoring
remedial efforts to ensure that consideration of religious
As other courts have noted, there is an inconsistency between
Plaintiffs' claim that the Navy is prohibited from considering
religion in its personnel decisions and their simultaneous
assertion that the Navy is constitutionally required to consider
religion in its personnel decisions by developing a system of
proportional representation.
See Sturm v. U.S. Navy, No. 99-CV2272, slip op. at 7 (S.D. Cal. June 18, 2002) ("Sturm Mem. Op.
of June 18, 2002") (noting inconsistency between argument that
"the First Amendment
does not permit
the Government
to
discriminate between denominations"
and simultaneous demand
"that Non-liturgical Protestants be picked over Liturgical
Protestants and Roman Catholics because they purportedly satisfy
a higher percentage of service members' religious needs").
- 11 -
considerations is "effectively eliminated" from promotions
and career processes,
and that
future
"complaints of
religious
discrimination are promptly investigated and
addressed."
Id. at 117-18.
C.
Defendants' Response to Plaintiffs' Claims
Defendants deny Plaintiffs' allegations in their entirety.
First,
(the
they deny that
so-called
existed.
"Thirds,"
They
point
any of
"1
out
the
that
"quota"
and
RC"
alleged
"2
Policies)
the
RC"
Navy's
rules
systems
ever
specifically
require promotion board members to "be nominated without regard
to
religious
membership
affiliation"
by
reason
and prohibit
of
religious
affiliation [.]"
[Dkt.
46-1]
gender,
4(a)
No.
&
Encl.
Chaplain
which
Corps'
chaplains
1(c) (1) (e)).
personnel
receive
ethnic
race,
Mot.
for
P.
from board
or
origin,
Summ.
at
J.
5
(citing SECNAVINST 1401.3 ~
(citations omitted)
~
1
Defs.'
"[e] xclusion
They point out further that the
policies
yearly
and
Guiding
training,
Principles,
expressly
on
prohibit
religious discrimination of any type and require that personnel
decisions
be
SECNAVINST
on
merit
5350.16A
requirements,
decisions
based
are
7) .
Defendants
made
on
maintain
the
Opp'n
alone.
basis
In
accordance
that
of
at
with
"[i] ndividual
qualifications
for P. Summ. J. at 23, 24
(citations omitted).
- 12 -
these
accession
alone"
that the Navy has consistently endeavored to "access[]
qualified candidates irrespective of faith group."
(citing
24
and
the best-
Defs.'
Mot.
Second,
Defendants claim that,
of nondiscrimination,
to prevent
consistent with its policy
the Navy has enacted numerous safeguards
discrimination from infecting selection proceedings
and to "protect the rights of all to worship or not worship as
they choose."
These
Opp'n at 24
safeguards
include
requiring
"take an oath to perform
partiality";
(citing SECNAVINST 5351.1, encl. 4).
[their]
selection board members
duties
without
to
prejudice or
instructing them to "ensure that officers are not
disadvantaged because of
religion"; and imposing on them a
duty to report any belief that board results have been tainted
by improper influence or bias.
2013,
Decl.
of
Commander
Opp' n at 2 4
Jeffrey
J.
&
Klinger,
Ex.
6 (Jan. 2 3 ,
USN)
("Klinger
Decl.") •• 26, 27, 29, 59 [Dkt. No. 156-6]; see also Defs'. Mot.
for P. Summ. J. at 4 (citing 10 U.S.C.
Third,
Plaintiffs'
Opp ' n
at
present,
largest
7
Defendants
expert,
2 0- 23 ,
Dr.
26 . 7
challenge
Leuba,
They
the
§
613).
statistical
findings
in their entirety.
assert
that
from
1988
See,
of
e.g.,
until
the
"Non-liturgicals have steadily grown to constitute the
of
the
four
Faith Group Categories
recognized by the
Defendants retained their own expert, Dr. Bernard R. Siskin,
Ph.D., whose analysis Plaintiffs have moved to strike under Fed.
R. Evid. 702 and 403.
See Opp'n, Ex. 2 (Statistical Analysis of
Promotions and Early Retirement Selections in the United States
Navy Chaplain Corps, Supplemental Report)
[Dkt. No. 156-2];
Pls.' Renewed Mot. to Strike [Dkt. No. 169].
The Court does not
rely on Dr. Siskin's report to resolve the pending Motion.
- 13 -
Navy for Chaplain Corps personnel management purposes,
becoming
the
outright
majority of
all
active
duty Chaplains,
both overall and at every rank save Rear Admiral."
They
claim
accessed
in
Roman
candidates
Id.;
20,
and
now
accessions,
percent,
"since
greater
category [,]"
Corps
that
at
FY
numbers
than
constitute
"compared to
Catholics
6.3
see also Decl.
at
percent
2002,
any
other
59. 9 percent
Liturgical
all
Opp'n at 4.
Non-liturgicals
7. 2 percent,
of
recently
faith
of
all
2 6. 7
Worship
respectively."
of Veronica Berto dated May 20,
2011, Berto Decl."), Exhibit C [Dkt. No.
at
Special
accessions,
group
Chaplain
Protestants
and
have
2011
156-8].
("May
Moreover,
they claim that this representation of Non-liturgical chaplains
exceeds "by a significant margin" the overall percentage of Navy
personnel
that
self-identify
as
belonging
category within the Non-liturgical
to
category."
a
faith
group
Opp' n · at
2 6- 2 7
(citing May 20, 2011, Berto Decl., Exs. A & B) . 8
Fourth and finally,
argue
that,
"[a] t
its
and based on the foregoing,
heart,
this
consolidated
Defendants
litigation
is
really a collection of individual employment disputes" . in which
8
Specifically, Defendants' analysis found that "Navy personnel
who self-identified as belonging to a faith group that would
fall within the Non-liturgical Faith Group Category constituted
only 13 percent of the Navy as of March 31, 2011[,]" whereas
"Non-liturgicals constituted 53 percent of the Chaplain Corps as
of FY 2010."
Opp'n at 26-27 (citing May 20, 2011, Berto Decl.,
Exs. A & B).
- 14 -
the proposed class members have only "two principal
common:
(1) they belong to Christian faith groups categorized by
the Navy as Non-liturgical
and
things in
at
(2)
some
point,
for personnel
each
sustained
management
one
or
purposes;
more
adverse
personnel decisions, such as failure to promote to the next rank
or selection for early retirement."
Defs.'
P. Mot.
at
that,"
Defendants
[Dkt.
1
No.
Plaintiffs'
2 9]
"Beyond
0
"individual
cases
diverge
in
to Dismiss
argue,
ways,
numerous
depending on when and where they served, what their duties were,
to whom they
reported and by whom they were
multiple other factors."
D.
supervised,
and
Id. at 1-2.
Procedural Background
This consolidated case is composed of three cases filed by
the same counsel: Chaplaincy of Full Gospel Churches v. England,
Civ.
No.
99-2945
("Adair");
("Gibson").
and
("CFGC");
Gibson
v.
Adair v.
Dep't
England,
of
Navy,
Civ.
Civ.
No.
No.
00-566
06-1696
CFGC and Adair were filed in this Court on November
5, 1999, and March 17, 2000, respectively, and were consolidated
for pretrial purposes on September 2 6,
21]
0
April
2 0 0 0.
[Adair Dkt.
No.
Gibson was filed in the Northern District of Florida on
28,
2006,
and
was
subsequently
District pursuant to 28 U.S.C.
§
1404.
17, 2006, at 1 [Gibson Dkt. No. 1].
- 15 -
transferred
to
this
See Mem. Order of August
On June 18, 2007, the Court
consolidated
all
"substantially
three
actions,
similar
Chaplaincy program."
concluding
constitutional
Mem.
that
challenges
Order of June 18,
they
to
raise
Navy
at 4
2007,
the
[Dkt.
No. 11].
On March 26,
Motion
for
Class
August 19, 2002
5
(D.D.C.
2002,
the Adair Plaintiffs filed their first
Certification,
[Dkt. No. 69].
2002).
which
the
Court
result
Four years later,
of
recent
circumstances,
"they
on
See Adair v. England, 209 F.R.D.
the Adair Plaintiffs moved
to vacate the 2002 Class Certification Order,
a
granted
"job
changes"
[we]re
no
claiming that, as
and
longer
personal
other
willing
or
able
to
represent or to assume the burdens inherent in representing the
class."
Pls.' Mot.
Pls.' Mot.
to Vacate the Aug. 19, 2002, Order Granting
to Certify a Class,
at 2
[Adair Dkt.
No.
156] .
On
May 30, 2006, the Court granted this Motion.
The
parties
engaged
discovery between 2002
litigation
Appeals.
and
In 2012,
to this case,
the
three
Court's
in
and
more
2009,
than
five
years
of
active
interspersed with collateral
interlocutory
appeals
Judge Ricardo Urbina,
to
our
Court
who had been assigned
retired and it was reassigned to this Court.
request,
Consolidated Complaint
on
October
[Dkt.
No.
3,
134]
remaining claims at issue.
- 16 -
of
2012,
Plaintiffs
filed
At
a
comprised of all of the
On December 4,
Motion
for
January
Class
23,
No.
Reply
("Reply")
on March
[Dkt.
No.
156] .
27,
Plaintiffs
Certification
2013,
[Dkt.
2 012,
Defendants
2013,
170],
No.
Defendants
[Dkt.
their
2013,
instant
No.
147].
Opposition
Plaintiffs
renewed
On
("Opp'n")
filed
their
With permission of the Court,
filed
and on April 15,
a
2013,
Sur-Reply
("Sur-Reply")
Plaintiffs also filed a
[Dkt. No. 178].
Subject Matter Jurisdiction Over Plaintiffs' Challenge to
the "Thirds Policy"
Before
must
filed
160].
Sur-Reply ("Sur-Sur-Reply")
II.
("Mot.")
On February 25,
[Dkt.
filed the
reaching
address
a
the
class
threshold
prior decisions:
certification
issue
whether it has
left
issue,
undecided
subject matter
in
the
one
Court
of
its
jurisdiction to
consider Plaintiffs' challenge to the alleged "Thirds Policy." 9
The parties dispute whether the Thirds Policy ever existed,
but
it
Consol.
is undisputed that
Compl.
(policy was
~
it has not existed since 2001.
35(a)-(b);
"abandoned"
Pls.'
in 2001)
9
Mot.
for
P.
[Dkt.
No.
55]
Summ.
J.
See
at 4-5
Our Court of
The Court has an affirmative duty to ensure that it is acting
within its jurisdictional limits and may raise the issue sua
sponte at any time.
See Fed. R. Civ. P. 12 (h) (3)
("If the
[district] court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action."); Evans
v. Suter, No. 09-5242, 2010 WL 1632902, at *1 (D.C. Cir. Apr. 2,
2 010) ("[A] district court may dismiss
sua sponte
when, as here, it is evident that the court lacks subject-matter
jurisdiction[.]").
- 17 -
Appeals has therefore recognized that,
eliminated the
Thirds
Policy,"
Navy will reinstitute it,
"because the Navy already
and there
is
no
evidence
"the
any injunction or order declaring it
illegal would accomplish nothing - amounting to exactly the type
of
advisory
opinion Article
III
prohibits."
Navy, 525 F.3d 1, 4 (D.C. Cir. 2008)
In
claim,
2008,
Defendants
arguing that,
to
challenge
accessed
to
dismiss
See Defs.'
the
Thirds
Policy
any prospective challenge
P. Mot.
to Dismiss at 21-22
They also argued that Plaintiffs lack standing
the
into
U.S.
("Larsen I").
under Larsen I,
to the Policy is moot.
[Dkt . No. 2 9 -1] .
moved
Larsen v.
Policy
the
because
Chaplain
"each
Plaintiff
successfully
and
therefore
cannot
Corps"
show
"that the Navy's past or present accession policies caused them
any injury in
Chaplaincy,
fact,
a
requirement
850 F. Supp.
Chaplaincy II")
2d 86,
of
109
standing."
(D. D.C.
2012)
In re Navy
("In re Navy
(citation and quotation marks omitted); see also
Defs.' P. Mot. to Dismiss at 19-22.
In response,
direct
injury
Plaintiffs did not argue that they suffered a
as
a
result
of
the
alleged
Thirds
Policy
(presumably because it is undisputed that they all successfully
accessed into the Chaplain Corps) , but asserted instead that the
Policy
resulted
in
an
underrepresentation
of
Non-liturgical
Protestants in the Chaplain Corps that limited their ability to
- 18 -
meet
their
workload.
communities'
religious
needs
and
increased
their
See Pls.' Opp'n to Defs.' P. Mot. to Dismiss at 29-30
[Dkt . No. 3 3] .
In 2012, the Court addressed these arguments.
to standing,
Policy
had
religious
it noted that
limited
needs
their
and
Plaintiffs alleged that
ability
increased
to
meet
their
the court
plaintiff [s]
to draw the
reasonable
suffered an injury in fact
In re Navy Chaplaincy II,
850 F.
their
the Thirds
communities'
workload.
concluded that this "pleaded factual content,
allow [s]
With respect
Supp.
The
Court
accepted as true,
inference
to support
2d at 110.
that
the
standing."
Given the
procedural pOsture of the case, however, the Court did not reach
whether
Plaintiffs
satisfied
the
other
elements
of
standing.
Id. at 109-110 (quoting Sierra Club v. EPA, 292 F.3d 895, 898-99
(D.C. Cir. 2002)).
With respect to mootness, the Court noted that the Court of
Appeals panel in Larsen I had recently recalled its mandate due
to the discovery of new evidence allegedly suggesting the Navy
had
reinstituted
denied
the
Defendants'
Thirds
mootness
Policy.
challenge
Consequently,
"without
the
Court
prejudice"
to
future consideration "after the court has ruled on the remanded
Larsen matter."
Id. at 110 n.11.
- 19 -
The
district
mootness issue.
court
in
Larsen
I
has
now
ruled
on
the
It determined that the challenge to the Thirds
Policy remained moot because the newly presented evidence did
not "indicate that the Thirds Policy will likely be reenacted."
Larsen v.
U.S.
("Larsen II").
Navy,
887
F.
Supp.
2d 247,
2012)
Consequently, as in
any forward looking or declaratory relief that
Court
might
would
"accomplish nothing -
grant
with
respect
to
the
amounting
Accordingly,
Plaintiffs'
alleged
Thirds
to exactly the
advisory opinion Article III prohibits."
4.
(D.D.C.
In this case, too, there is no evidence the Navy
will reinstate the alleged Thirds Policy. 1 °
Larsen I,
258
Larsen I,
this
Policy
type of
525 F.3d at
claim for declaratory and forward-
looking injunctive relief related to the Thirds Policy is moot.
In
light
demonstrate
10
of
this
standing
to
conclusion,
challenge
Plaintiffs
the
Policy.
also
They
cannot
have
The evidence of the Thirds Policy consists largely of a single
memorandum from Captain D. K. Muchow to the Chief of Chaplains
regarding the annual accessions plan for FY 1987 (the "Muchow
[Dkt. No. 55-22].
The Muchow Memorandum states
Memorandum")
that "[f]aith group mix best meets the needs of the naval
service when 35 percent of the Chaplain Corps inventory is
liturgical, 35 percent non-liturgical and 30 percent other
(Roman Catholic, Jewish, Orthodox)."
Id. at 1.
However, it
makes no reference whatsoever to the existence of any formal
Thirds
Policy and there
is no
indication that Muchow's
assessment of optimal "faith group mix" reflected the views of
the CHC as a whole or pertained to accession goals for any year
other than FY 1987. At his deposition, Muchow characterized the
Memorandum as merely a "snapshot of where we were" in FY 1987.
See Dep. Tr. of Donald K. Muchow at 44:18 [Dkt. No. 47-15].
- 20 -
previously argued that they suffered an Article III injury as a
result of the Thirds Policy because it limited their ability to
meet the religious needs of Non-liturgical service members and
increased
their
workload.
Even
however,
assuming,
that
Plaintiffs could prove they were required to work harder than
other chaplains as a result of the Policy (as to which there is
negligible evidence),
and that
such an injury is
concrete and particularized to satisfy Article
sufficiently
III,
Plaintiffs
would still be required to show that it is "likely,
as opposed
to merely speculative,
favorable
Project v.
that the injury will be redressed by a
decision."
EPA,
May 30, 2014)
No.
Nat'l
13-1035,
Envtl.
Dev.
Ass'n's
2014 WL 2219065,
at *3
Clean
(D.C. Cir.
(quoting Lujan v. Defenders of Wildlife,
555, 560-61 (1992))
Air
504 U.S.
(quotation marks and ellipses omitted).
There is no indication that Plaintiffs'
increased workload
in the past has had any lasting adverse effect.
As the District
Court for the Southern District of California held in a related
case,
"' [p] ast exposure to illegal
show a present case or controversy .
continuing,
present
adverse
conduct does not
. if unaccompanied by any
effects. '"
Wilkins
States, No. 99-CV-1579-IEG (LSP), slip op. at 23
29,
2005)
("Wilkins Mem.
Op.
of June 29,
- 21 -
in itself
2005")
v.
United
(S.D. Cal. June
(quoting Renne
v. Geary, 501 U.S. 312, 320-21
(1991))
(emphasis added)); aff'd,
232 F. App'x 710 (9th Cir. 2007).
Furthermore, there is nothing in the record to suggest that
the
limited
this
Court
could
Plaintiffs
Thirds
declaratory
provide
sustained
Policy.
and
in
effective
the
" [W] hile
injunctive relief,
injunctive
past
remedies
relief
as
a
plaintiffs
for
result
may
available
any
of
in
injuries
the
alleged
seek declaratory and
they may not seek damages because the United
States has not waived sovereign immunity for monetary relief for
unconstitutional
acts
taken by government
their official capacities."
13-1571,
2014
WL
(citing Clark v.
Cir.
1984)).
immunity
RFRA."
1022,
1026
at
Cir.
(D.D.C.
750
also
damages
2006)
n.2
Cong.,
(citing Webman v.
(D.C.
*3
government
monetary
acting
in
Leonard v. U.S. Dep't of Def., No.
Library of
"The
for
Id.
1689606,
employees
Apr.
has
resulting
not
2014)
102-03
F.2d 89,
30,
(D.C.
waived
from
sovereign
violations
Fed. Bureau of Prisons,
of
441 F.3d
("RFRA does not waive the federal
government's sovereign immunity for damages.")).
Consequently,
if
Plaintiffs
prevailed,
they
would
be
limited to non-monetary relief for any constitutional violations
resulting
Policy.
from
the
Navy's
prior
use
of
the
alleged
Thirds
They have not identified any non-monetary relief that
could remedy the fact
that they were required to
- 22 -
"expend more
effort" than their Liturgical colleagues a decade or more ago. 11
Nor have they identified any other injury related to the alleged
Thirds Policy that the Court could redress through non-monetary
relief. 12
In
sum,
because
Plaintiffs'
request
for
declaratory
and
forward-looking relief is moot and the Court is unable to issue
any relief for the only injury they claim to have suffered in
11
Plaintiffs do allege that Non-liturgical chaplains are still
underrepresented as a result of the alleged "Thirds Policy" and
thus suggest that the Court can provide relief for the fact that
they continue to shoulder a heavier workload.
See Pls.' Opp'n
to Defs.' P. Mot. to Dismiss at 33.
But this contention finds
no support in the record. As already noted, as of FY 2010, Nonliturgical Protestants made up more than 50 percent of the
Chaplain Corps, whereas in 2011, personnel who self-identified
as belonging to a Non-liturgical faith group constituted only 13
percent of the Navy. See May 20, 2011, Berto Decl., Exs. A & B.
12
Plaintiffs allege that the Thirds Policy "applied" to
recruiting and accessions.
See Consol. Compl. ~~ 35(b), 43; see
also Decl. of Commander Timothy J. Demy, CHC, USN ("Demy Decl.")
-r4 [Dkt. No. 178-4].
To the extent they suggest it also
applied to other personnel decisions, see Consol. Compl. ~ 43,
they have presented no evidence that it did, whereas Defendants
have submitted an affidavit clearly stating that "[t]here [we]re
no express or implied quotas for promotion based on faith"
during the relevant time period.
Affidavit of R.W. Duke at 4,
Wilkins v. Lehman, No. 85-3031 (S.D. Cal. Jan. 16, 1986) ("Duke
Aff. ") [Dkt. No. 172 -3] .
Similarly, a promotion board precept
dated June 23, 1987, states that boards must select officers who
"giving due consideration to the needs of the Navy for officers
with particular skills, considers best qualified for promotion,"
a standard to "be applied uniformly" to all candidates.
FY 1988
Promotion Board Precept at 2 [Dkt. No. 160-8].
There is simply
no evidence that the alleged Thirds Policy, or any other
religious quotas or goals, impacted promotion, retention, or
selective early retirement decisions.
- 23 -
the past,
Plaintiffs have
not
established the
existence of
"live controversy" pertaining to the Thirds Policy.
the Court
is without
a
Therefore,
jurisdiction to consider it.
See Sturm
Mem. Op. of June 18, 2002, at 6 ("While Plaintiff may take issue
with Defendant's
former accession practices,
the
pronouncing
business
of
that
past
' [w] e
actions
are not
which
have
demonstrable continuing effect were right or wrong.'")
in
no
(quoting
Spencer v. Kemna, 523 U.S. 1, 18 (1998)), aff'd, 76 F. App'x 833
(9th Cir. 2003)).
For these reasons,
Policy
shall
be
Plaintiffs'
dismissed
claim related to the Thirds
for
lack
of
matter
subject
jurisdiction.
III. CLASS CERTIFICATION
The
Court will
Certification.
now consider Plaintiffs'
Plaintiffs
seek
to
certify a
Motion for Class
class
of
2, 500 "present and former Non-liturgical Navy chaplains,
duty and Reserve,
includes,
"careers
have
to
active
who were in the Navy or have served in the
Navy" between 1976 and the present.
class
up
but
been
is
not
Mot. at 3, 7.
limited
injured,
to:
(1)
The proposed
chaplains
terminated or otherwise
whose
adversely
affected by the Navy's and the CHC's unlawful bias and prejudice
against
Non-liturgical
chaplains";
(2)
chaplains
who
"saw or
experienced the Navy's Non-liturgical bias and left active duty
-
24 -
or retired early rather than endure that bias and prejudice";
and
(3)
chaplains "who have not yet personally suffered career
injury as a result of the practices and policies challenged here
because manifestation of the injury has been delayed [.]"
Mot.
at 3-5.
A.
Legal Standard
"The class action is an exception to the usual rule that
litigation is conducted by and on behalf of the individual named
parties only."
2550
(2011)
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
(citation
and
quotation
certification is governed by Rule
Civil Procedure.
inquiry: first,
met;
second,
appropriate
marks
23
of
Class
omitted).
the Federal
Rules of
There are two components to the certification
each of the four elements of Rule 23(a) must be
certification
under
at
of
least
enumerated in Rule 23 (b) .
the
one
proposed
of
Richards v.
the
class
three
must
be
categories
Delta Air Lines,
Inc.,
453 F.3d 525, 529 (D.C. Cir. 2006).
The
proponent
of
class
certification
must
prove
by
a
preponderance of the evidence that the requirements of Rule 23
are
satisfied.
Court
has
pleading
Wal-Mart,
stated
that
standard";
certification
must
131
"Rule
S.
Ct.
23
does
rather,
" [a]
affirmatively
- 25 -
at
The
2548.
not
set
party
demonstrate
forth
seeking
[its]
Supreme
a
mere
class
compliance
with the Rule -
that
there
fact
are
questions
in
of
law
is,
[it]
must be prepared to prove
sufficiently
or
fact,
court
must
numerous
etc."
Id.
conduct
"a
at
parties,
that
common
2551
(emphasis
in
rigorous
analysis"
to
have
met.
original)
The
ensure
This
trial
that
the
requirements
of
Rule
23
inquiry may overlap with an appraisal
of
been
Id.
the merits,
for
"it may be necessary for the court to probe behind the pleadings
before
(citing
coming
to
Gen.
Tel.
(1982)).
ranging
rest
on
the
certification question [.]"
Co.
of
Sw.
v.
Rule 23 is not, however,
merits
inquiries [,]"
the
satisfied."
Rule
Amgen Inc.
v.
U.S.
147,
160,
questions
may only be
"they are relevant to determining
prerequisites
23
457
a "license to engage in free-
and merits
considered to the extent that
whether
Falcon,
Id.
Conn.
for
Ret.
class
certification are
Plans & Trust Funds,
133
S. Ct. 1184, 1194-95 (2013).
B.
Rule 23 (a)
Under
Rule
23 (a) ,
demonstrate that:
all
fact
( 1)
a
plaintiff
seeking
certification must
the class is so numerous that
members
is
impractical;
common
to
the
class;
(2)
( 3)
there
the
are
claims
questions
or
joinder of
of
defenses
law or
of
the
representative parties are typical of the claims or defenses of
the
class;
and
( 4)
the
representative parties
-
26 -
will
fairly
and
adequately protect the interests of the class.
Fed. R.
23 (a) .
referred
These
four
numerosity,
requirements
commonality,
are
commonly
typicality,
Civ.
P.
to
as
adequacy
and
of
representation, respectively.
The parties do not dispute that the numerosity requirement
is
satisfied;
therefore,
the
Court
confines
its
analysis
to
a
discussion of the other three requirements.
1.
Commonality
Rule 23 (a) (2)
requires
the existence of
Fed.
or fact common to the class."
requirement
was
the
Wal-Mart.
basis
Wal-Mart
of
the
involved
a
R.
Civ.
Supreme
proposed
"questions of law
P.
Court's
class
decision
of current
former female employees who alleged that Wal-Mart had a
and uniform
women
to
'corporate culture'"
infect,
perhaps
that
"permit [ted]
the
subconsciously,
This
23 (a) (2).
in
and
"strong
bias against
discretionary
decisionmaking of each one of Wal-Mart's thousands of managers thereby
making
every
woman
at
the
common discriminatory practice."
The
Supreme
commonality.
Court
same
victim
of
one
this
theory
as
a
basis
for
It explained that the inquiry under Rule 23(a) (2)
provision of
proceeding
the
Wal-Mart, 131 S. Ct. at 2548.
rejected
is not whether class members
the
company
[will]
"have all suffered a violation of
law [,]"
generate
but
common
- 27 -
rather whether
answers
apt
"a
to
classwide
drive
the
resolution of the litigation."
Id. at 2551
citation and internal punctuation omitted) .
class members'
(emphasis added and
In other words, the
claims must depend on a "common contention" that
is "of such a nature that it is capable of classwide resolution
-
which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of
the claims in one stroke."
Id.
(citations omitted).
Quoting a prior decision, the Court observed that:
Conceptually, there is a wide gap between (a) an
individual's claim that he [sic] has been denied a
promotion
on discriminatory grounds, and his
[sic]
otherwise
unsupported
allegation
that
the
company has a policy of discrimination, and (b) the
existence of a class of persons who have suffered the
same
injury as
that
individual,
such that
the
individual's claim and the class claim will share
common questions of
law or fact
and that
the
individual's claim will be typical of the class
claims.
Id. at 2553
marks
(quoting Falcon,
omitted)).
The
Court
theoretically be bridged by
457 U.S. at 157-58
acknowledged
this
"significant proof"
(quotation
gap
that
could
Wal-Mart
Id.
"operated under a general policy of discrimination."
It
observed, however, that "Wal-Mart's announced policy forbids sex
discrimination,"
that
and
the plaintiffs'
consequently,
the
"only
corporate
policy
evidence convincingly establishes is Wal-
Mart's 'policy' of allowing discretion by local supervisors over
employment
matters."
Id.
at
2553-54.
- 28 -
A
policy
of
local
discretion, the Court concluded, did not satisfy the commonality
requirement
because
it
"is
employment
practices[,]"
a
policy
and
against
having
uniform
the
"demonstrating
therefore,
invalidity of one manager's use of discretion will do nothing to
demonstrate the invalidity of another's."
Id. at 2554
(emphasis
in original).
In this case,
just as in Walmart,
Plaintiffs do not allege
that the Navy ever had an express policy against the advancement
of Non-liturgical Protestants.
an
array
of
individual
Instead, they rest their case on
anecdotes
they
contend
demonstrate
a
"pervasive pattern of religious preference."
Yet the theories
of
these
individual
Individual
Plaintiffs
religious
anecdotes
vary
conclude
that
believe
discrimination
widely.
they
themselves
different
faiths
personnel system.
Some
were
to
who
reflected
of
the
discriminated
be
more
fared
in
against
qualified
better
in
than
the
they
disputes
animosity,
of
Corps'
Others complain of poor fitness reports and
issued by their
on
they
chaplains
Chaplain
unfavorable work assignments
blame
because
interpersonal
retaliation,
superiors,
combined
with
which
religious
and/or racial or gender discrimination.
Yet others tell extended narratives of local command officers or
senior
chaplains
interfering
with
- 29 -
their
ministry
efforts,
prayer,
or
worship
styles
for
a
variety
of
reasons
they
attribute to religious hostility. 13
These diverse circumstances and theories of discrimination
undermine
Plaintiffs'
outset.
could
See,
not
show
different jobs,
variable
states"
e.g.,
13
Wal-Mart,
establish
131
8.
Ct.
they
commonality
at
2557
"held
a
at
the
(plaintiffs
multitude
at different levels of Wal-Mart's hierarchy,
lengths of time,
and were
2006)
to
commonality because
subjected
that all differed");
Cir.
efforts
in 3, 400
stores,
"to a
variety of
Garcia v.
Johanns,
sprinkled across
regional
444 F.3d 625,
of
for
50
policies
632
(D.C.
("Establishing commonality for a disparate treatment
By way of illustration, one chaplain attributes his nonselection for promotion to rumors spread about his "stability
and performance" following a referral for psychiatric evaluation
after his "liberal" command Chaplain overheard him telling his
wife
that
his
ministry was
"truncated by demonic
forces
personified by Chaplains."
Addendum A to Consol. Compl. ~ 50.
Four other chaplains stationed in Naples, Italy contend that
they received poor fitness
reports
from Catholic
superior
officers for praying "in Jesus name."
Id. ~~ 5, 10, 18, 62-63.
A chaplain stationed in Okinawa, Japan from 1991 until 1993
claims that "his Liturgical Protestant rating chaplain gave him
a poor fitness report" for failing "to support his rater's .
prayer breakfasts" and "preaching that men who call themselves
Christians should live as Christians."
Consol. Compl. ~ 184(b).
Another chaplain believes his non-promotion was retaliation by a
Catholic board member who allegedly accused him of "stealing
sheep" after baptizing a woman who asked to be baptized by
immersion.
Id. ~ 184(g).
Another chaplain resigned after being
investigated by the Navy for sexual harassment but attributes
the investigation to religious discrimination.
Addendum A to
Consol. Compl. ~ 3 0.
Two Hispanic chaplains claim to have
suffered a combination of religious and racial discrimination.
Id.
~~
40,
54.
These types of individualized allegations
pervade the Consolidated Complaint.
- 30 -
class
is
particularly
difficult
where,
as
here,
multiple
decisionmakers with significant local autonomy exist.")
Nevertheless,
as our Court of Appeals has emphasized,
commonality requirement
"even
a
Columbia,
131
S.
single
common
713 F.3d 120,
Ct.
at
2556).
whether Plaintiffs have
is
not
question
128
a
predominance
will
(D.C.
do."
Cir.
Therefore,
2013)
the
requirement
D.L.
v.
Dist.
the
and
of
(citing Wal-Mart,
Court
shall
identified any common issue of
consider
law or
fact tying their injuries together. 14
14
Plaintiffs argue that the Court's 2002 class certification
decision in Adair, 209 F.R.D. at 10, is the "law of the case,"
thereby governing the Court's analysis on this Motion.
Sur-SurReply at 6.
The Adair Class Certification Order was vacated at
Plaintiff's request on May 30, 2006, and is, therefore, no
longer "law of the case."
Coalition to End Permanent Congress
v. Runyon, 979 F.2d 219, 221 n.2 (D.C. Cir. 1992) (once vacated,
an opinion is "no longer law of the case")
(Silberman, J.,
dissenting).
Furthermore, in light of Wal-Mart, many of the
Court's conclusions in Adair are no longer good law.
For
example, the Adair decision held that, "[i]n determining whether
to certify a class, the court should not consider the underlying
merits of the plaintiff's claims," and should "accept as true
the allegations set forth in the complaint."
Adair, 209 F.R.D.
at 8.
Wal-Mart, however, makes clear that "Rule 23 does not set
forth a mere pleading standard" and the "party seeking class
certification must affirmatively demonstrate [its] compliance
with the Rule
that is, [it] must be prepared to prove that
there are in fact
common questions of law or fact [.]"
Wal-Mart, 131 S. Ct. at 2551 (emphasis in original).
Similarly,
in Adair, the Court based its commonality finding on Plaintiffs'
allegations
of
"a
pervasive
pattern"
of
religious
discrimination.
Adair, 209 F.R.D. at 10.
In Wal-Mart, however,
the Supreme Court held that such allegations do not satisfy Rule
23(a) (2) unless there is "significant proof" that the defendant
"operated under a general policy of discrimination."
Wal-Mart,
131 S. Ct. at 2553.
In fact, as our Court of Appeals recently
- 31 -
a.
"Culture" of Denominational Favoritism
Just as in Wal-Mart, Plaintiffs rely heavily on allegations
of a pervasive
37.
of prejudice" in the CHC.
~culture
They argue that the
individual
culture
faith
case
is
the
~common
Navy, s
of prejudice against
groups
they
unconstitutional
systemic
represent,
and
of
and
institutionalized
chaplains
see
also
id.
~organizational
composed
~around
of
at
5,
culture"
shared
14,
favoritism
as
15,
a.
~values,
,,
~set
28,
of
29,
[sic] "
31.
the
twin
preferred
for
Mot. at
They
define
common understandings,"
~assumptions,"
which action is organized.,,
and
resulting
the
denominations and prejudice against Plaintiffs,
39;
at 16,
issue in each class member, s
Non-liturgical
message
Mot.
Mot.
at
and
~beliefs,"
15-16
(citations
omitted)
Under Wal-Mart,
this theory only satisfies the commonality
requirement if the Navy,s culture of prejudice is so strong as
to
suggest
that
the
Chaplain Corps
operated under a
~general
observed,
~wal-Mart 's
interpretation of Rule
23 (a) (2)
has
changed the landscape" of class certification.
D. L., 713 F. 3d
at 126-27
(citations omitted).
Con~equently,
neither the
Court,s 2002 certification order in Adair nor the other pre-WalMart commonality cases on which Plaintiffs rely are controlling.
See Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625, 632 (D.C.
Cir. 2010) (noting exception to ~law of the case" doctrine where
there is an ~intervening change in controlling law").
- 32 -
policy" of discrimination. 15
Plaintiffs have not come close to
satisfying this demanding standard.
First,
the
Navy's
guiding
clearly
documents
unequivocally seek to promote a culture of tolerance,
For
example,
Standards"
the
Chaplain
expressly
state
not bias.
written
the
"Professional
Chaplain
Corps'
that
and
Corps
"is
a
religiously impartial governmental organization with no inherent
theology
of
chaplains"
its
to
own"
which
accommodate
personnel of all faiths."
further
provide
equally
that
"[i] t
tolerant
of
every
authorized persons
exists
"the
to
"empower
requirements
religious
SECNAVINST 5351.1(5).
is
the
policy
Service
15
that
of
of
The Standards
member
irrespective of
individual
the
individual's
CHC
and
to
be
other
religious
While Plaintiffs bring their discrimination claims under the
First and Fifth Amendments, not Title VII as in Wal-Mart, they
fail to offer any other viable theory as to how a class-wide
determination of "culture" might resolve an issue central to
their claims.
They do not "allege hostile work environment
claims under Title VII[.]"
In re Navy Chaplaincy, 850 F. Supp.
2d 86, 116 (D. D.C. 2 012) ("In re Navy Chaplaincy II") .
They
argue vaguely that the Establishment Clause required Defendants
to maintain a "denominationally neutral" culture.
Reply at 9.
But while they are correct that "[t]he government must be
neutral when it comes to competition between sects," Zorach v.
Clauson, 343 U.S. 3 06, 314 ( 1952) , they cite no authority for
the proposition that the Government must go beyond a policy of
neutrality to,
in fact,
achieve a denominationally neutral
culture.
Consequently, the Court considers Plaintiffs' "culture
of prejudice" theory only insofar as it might demonstrate that
the Navy operates under a
"general policy"
of religious
discrimination.
- 33 -
beliefs
or
unbelief"
and
to
endeavor
to
"accommodate
the
religious beliefs of all to the fullest possible extent."
encl. 2 (2),
(5)
Likewise,
"communicate
institution
(emphasis added).
the
the
and
Chaplain
values
serve
and
as
religious
Corps'
that
a
throughout their careers,"
cultural
Id.
Guiding
hold· the
point
of
state that
values
that
Principles,
CHC
together
reference
for
which
as
an
chaplains
"[w] e seek to understand
differ
from
our
own"
and
"believe the right to exercise our faith is best protected when
we protect the rights of all to worship or not worship as they
choose."
To
Id., encl. 4.
prove
that
a
"culture
of
denominational
favoritism"
nevertheless exists, Plaintiffs rely primarily on affidavits and
deposition
chaplains
testimony
describe
retaliation,
in
which
particular
they
and
instances
other
of
Non-liturgical
hostile
treatment,
and/or specific local command officers scheming to
suppress, take over, or shut down their Non-liturgical services.
See generally Addendum A to Consol. Compl.; Reply at 20-22; SurSur Reply at 2-3.
However, Captain Lyman M. Smith, Executive Assistant to the
Chief of Navy Chaplains, has submitted a declaration explaining
that
"[c] ommanding officers
at
the
local
level
have
ultimate
responsibility for providing command religious programs" in each
-
34
-
of the "500 separate geographically dispersed duty assignments
11
served by the CHC, and "[n]either the Chief of Chaplains nor the
Chaplain
Corps
controls
the
individual
command
programs which are in place at each duty station.
Decl. at 2-3 [Dkt. No. 47-19]
This . decentralized
Principles
tolerance
and
and
and
religious
system,
Professional
combined
stem
Tel.
&
("Substantial
Tel.
degree
Co.,
of
628
and
wholly
from
a
F.2d
"culture
"[c]ommonality
is
religious
Plaintiffs'
perhaps
of
See, e.g.,
267,
279
prejudice
11
Stastny v.
(4th
1980)
complete
almost
Cir.
local
. cuts against any inference
for class action commonality purposes.
(D.D.C. 2002)
defeats
Guiding
experiences of discrimination
autonomy in separate facilities
F.R.D. 15, 22
clear
requiring
that is common to the class as a whole.
S. Bell
with
Standards
their individual
intolerance
Supp. Smith
11
(citing OPNAVINSTR 1730.1D).
non-discrimination,
suggestion that
religious
11
);
Garcia v. Veneman, 211
(holding in discrimination case that
defeated
by
the
geographic dispersion of the decision-makers
11
large
)
numbers
and
16
Plaintiffs also cite to a declaration submitted by Captain
Larry H.
Ellis,
"perception
11
in
who refers,
the
without elaboration,
mid-1990s
"among
to a general
non-liturgical
16
chaplains
Indeed,
Plaintiffs
themselves
acknowledge
that
their
individual experiences do not portray a "culture so much as "a
series of individual incidents.
Mot. at 16.
11
11
- 35 -
that
the
Chaplain
denominations
Corps
and against
Captain Larry H.
Ellis,
was
biased
non-liturgical
U.S.N.
chaplains.
(Retired)
~~
[Dkt. No. 160-6]; see also id.
6,
liturgical
toward
11.
Aff.
11
("Ellis Aff.
However,
of
~
36
11
)
neither the
Ellis Affidavit, nor the related Ellis Memorandum [Dkt. No. 13215]
1
suggest
religious
bias
that
Non-liturgical
grew out
of
chaplains'
an organizational
perceptions
culture
that
of
is
common to the CHC as a whole. 17
Thus,
instances
while
of
Plaintiffs
religious
may
intolerance,
have
individual
suffered
there
is
no
evidence
to
suggest their experiences reflect a culture that is consistent
across time and space and common to the entire class.
See Dukes
17
In some cases, such perceptions appear to have arisen only
after individual chaplains spoke with their endorsing agencies
or read documents related to this case and other similar cases.
See, e.g., Decl. of Patrick M. Sturm~ 4 [Dkt. No. 178-7] (after
"talking with my endorser, it became obvious that CFGC chaplains
were not being treated fairly in the Navy
Add. to Consol.
Compl. at 22, 23
(only "[a]fter reviewing the issues and
evidence related to this action,
did "CH Hatch bee [o] me aware
[of] the CHC' s biased policies
id. at 26 (prior to reading
documents related to this case, CH Hendricks "believed [that the
Navy's] promotion system was fair, all records were competitive,
and faith group was not important [to promotion]
id. at 3 8
("Prior to [hearing about the allegations in this case] , CH Mak
"believed the Navy's .
promotion system was fair and [that]
faith group was not a factor in promotion decisions
id. at 49
( "CH Quiles thought his non-selection was 'the luck of the
draw.'
Through one of the co-Plaintiffs, he learned of
the injustice done to him.
id. at 67 ("Prior to hearing about
th [is] litigation in 2002, CH Watson had no knowledge of the
evidence showing religious bias[.]
11
)
;
11
11
);
11
)
;
11
11
11
);
11
).
- 36 -
);
v. Wal-Mart Stores,
Inc.,
2013)
on
(concluding
although plaintiffs'
964 F. Supp. 2d 1115, 1124
remand
from
anecdotes
the
Supreme
(N.D. Cal.
Court
of discrimination
that,
"succeeded in
illustrating attitudes of gender bias ·held by managers at WalMart,
they failed to marshal significant proof that intentional
discrimination was a general policy affecting the entire class")
(emphasis added) .
Therefore,
of a
Plaintiffs'
individual anecdotes and allegations
"culture of prejudice" do not provide "significant proof"
that
Defendants
"operated
discrimination,"
under
policy
general
a
as required under Wal-Mart.
Wal-Mart,
of
131 S.
Ct. at 2553.
b.
Next,
requirement
policies
Policies and Practices
Plaintiffs
purport
by challenging the
and
practices
denominational
preferences
that
policies
Navy's
neutrality and religious
"[e]ach
of
the
the
tolerance.
challenged
require
Instead,
practices
allows
personnel
"result [ed]
award
They do not,
expressly
commonality
specific
allegedly
in
Reply at 11.
the
satisfy
legality of
that
opportunities[.]"
the
to
of
however,
in
career
dispute
denominational
they argue
that
denominational
representatives to make subjective judgments for which there is
no accountability and no process providing effective guarantees
-
37 -
that denomination does not enter into the decision."
Reply at
20.
Insofar as Plaintiffs challenge facially neutral policies,
such as secret voting,
the practice of
cannot
prevail
the small size of selection boards,
appointing two
unless
they
chaplains
establish
motivated by discriminatory intent,
"appear
to
endorse
observer [ . ] ' "
In
religion
re
Navy
original)
in
to each board,
that
the
lack a
the
they
policies
are
rational basis,
eyes
Chaplaincy
and
of
III,
a
738
or
'reasonable
F.3d
at
430
(emphasis
in
concluded,
Plaintiffs either do not allege or have not shown a
As
our
Court
of
Appeals
recently
likelihood of success on the merits as to any of these theories.
Id.
at 430
("Given facially neutral policies and no showing of
intent to discriminate,
[plaintiffs]
have not shown
likelihood of success [on their Equal Protection claims].")
at 431 ("We feel confident that
i
[a]
id.
reasonable observers .
are most unlikely to believe that the policies convey a message
of government endorsement.").
For
the
same
reasons,
and
because
Plaintiffs
make
no
further evidentiary showing in this Motion,
they also have not
presented
such
purposes
"significant
of
the
proof"
commonality
to
support
requirement
- 38 -
under
theories
Rule
for
23 (a) (2).
Therefore,
Plaintiffs'
attack on facially neutral policies does
not infuse Rule 23 (a) (2) commonality into their claims. 18
Plaintiffs
However,
the
also
challenge
evidence
they
the
have
so-called
presented
existence of such a policy is negligible.
"1
to
RC"
policy.
establish
the
It consists primarily
of a chart they prepared reflecting the religious affiliation of
promotion
board
members
from
1977
Compl., Ex. 15 ("Prom. Bd. Chart")
indicates
that,
from
selection
board
included
except
for
selection
roughly
FY
in
See
2002.
[Dkt. No. 132-16]
1987
exactly
boards
until
one
FY
included two Roman Catholic members.
until
Roman
1987
and
FY
The chart
2002,
Catholic
FY
Consol.
1998,
each
member,
which
Prom. Bd. Chart at 5-13.
The source of the information in the chart is unclear and
there are significant gaps in the data presented.
But even if
the Court ignores these deficiencies, the chart does not suggest
that Roman Catholics were overrepresented,
favored,
or treated
differently than Non-liturgical board members in selection board
appointments.
To the contrary,
board members
served on selection boards
it shows that 75 Non-Liturgical
18
from FY 1987 and FY
In fact, this Court has already dismissed Plaintiffs' facial
challenge to various selection board practices, leaving only the
possibility of a challenge "as-applied" to "certain individual
chaplains."
See In re Navy Chaplaincy II, 850 F. Supp. 2d at
96. By definition, a claim that only applies to "certain
individual chaplains" would not support commonality as to the
entire class.
- 39 -
2002,
while only 48 Roman Catholic board members served during
the same time period.
Furthermore,
at
all
See generally Prom.
relevant
specifically prohibited
reason
of
gender,
affiliation."
Thus,
times,
"[e] xclusion
race,
there
is
~
virtually
mere
a
Chart at 5-13.
Navy's
regulations
board membership
origin,
by
religious
or
4(a).
in fact,
such
from
no
suggesting the Navy ever,
allegation of
the
ethnic
SECNAVINST 1401.3
Bd.
in
evidence
the
record
had a "1 RC" policy, and the
policy cannot
provide
a
basis
for
policies
are
commonality under Rule 23(a) (2).
Finally,
Plaintiffs
suggest
that
the Navy's
inadequate in a way that affects the class as a whole because,
although
individual
discretion
of
delegation,
which
fails
to
personnel
specific
See,
all
[sic]
guarantees
ensuring
refer
against
discrimination.
Plaintiffs
selection
Plaintiffs
protect
decisions
e.g.,
are
boards,
to
as
that
challenges
is
the
policy
of
instances
of
("The common theme in
the
neutrality
to
"denominationalism,"
individualized
Reply at 10
religious
delegated
lack
in
of
effective
career
impacting
decisions."); Sur-Sur Reply at 2 ("Denominationalism is the Navy
allowing its senior chaplain[s] to exercise their denominational
bias without accountability.").
- 40 -
Notwithstanding
"denominationalism"
system,
that
Plaintiffs'
Corps'
personnel
their theory of commonality boils down to a
complaint
the
to
Chaplain
describe
Corps
lacks
discriminatory
decision-making
Reply
("Each
at
20
the
of
Chaplain
label
the
of
use
effective
by
these
protections
individual
against
chaplains.
challenged
practices
See
allows
denominational representatives to make subjective judgments for
which
there
is
no
accountability
and
no
process
providing
effective guarantees that denomination does not enter into the
decision.").
This theory of commonality is precisely the one rejected by
Walmart
and its progeny.
corporate
policy
establishes
local
is
the
Wal-Mart's
supervisors
Constr. Co.,
that
at
plaintiffs'
'policy'
of
2553-54
evidence
allowing
over employment matters.")
688 F.3d 898,
contend[]
See Walmart,
893
that Walsh has
("The only
convincingly
discretion
Bolden v.
i
(7th Cir. 2012)
by
Walsh
("Plaintiffs[]
14 policies that
present
common
questions, but all of these boil down to the policy of affording
discretion to each site's superintendent - and Walmart tells us
that
local
matter
how
discretion
cleverly
cannot
lawyers
support
a
may
try
variability as uniformity.").
- 41 -
company-wide
to
class
repackage
no
local
In sum,
existence
basis
although Plaintiffs repeatedly cite to the alleged
of
for
unconstitutional
class
"significant proof"
"policies
certification,
and
they
practices"
have
not
as
a
presented
of any specific unconstitutional policy or
practice that applied to them across the board as a class and
produced a common legal injury.
Therefore, they may not rely on
such
to
policies
or
practices
satisfy
· the
commonality
requirement of Rule 23(a) (2).
c.
Statistical Evidence
In their final effort to establish commonality,
rely
on
statistical
evidence
purporting
to
show
Plaintiffs
religious
disparities in personnel outcomes within the CHC.
Statistical disparities alone generally are not proof that
any particular plaintiff,
been discriminated against.
("If
much less the class as a whole,
See, e.g., Bolden,
has
688 F.3d at 896
[defendant] had 25 superintendents, 5 of whom discriminated
aggregate data would show that black workers did worse
than white workers - but that result would not imply that all 25
superintendents behaved similarly,
commonality.").
Consequently,
so it would not demonstrate
Plaintiffs'
statistical evidence
can satisfy the commonality requirement only if it is so stark
as to indicate that the CHC "operated under a general policy of
discrimination," Wal-Mart, 131 S. Ct. at 2553, or suggest to the
- 42 -
"reasonable
group.
observer"
that
the
Navy has
endorsed
a
religious
In re Navy Chaplaincy III, 738 F.3d at 430. 19
As. this Court has already found,
recently
affirmed,
Plaintiffs'
and the Court of Appeals
statistical
to
evidence
the
extent it is even statistically significant - "does not remotely
approach the stark character" that might satisfy either of these
tests.
Id.
at
429
("[T]he disparity between 73.3% and 83.3%
[promotion rates] does not remotely approach the stark character
of
the
(1960)]
431
disparities
or Yick Wo
in
Gomillion
[v. Hopkins,
[v.
Lightfoot,
118 U.S. 356
364
U.S.
339
(1886)] ."); id. at
("Assuming arguendo that it is proper to see the 'reasonable
observer'
as
a
hypothetical
person
reviewing
an
array
of
the figures in this case would not lead him [or
statistics .
her] to perceive endorsement.").
Furthermore,
Dr.
Leuba,
Plaintiffs'
expert,
has
expressly
stated that his statistical analysis does not purport to show
that
discrimination
infects
every CHC personnel
decision,
but
merely that "some bias will creep in" because he believes that
chaplains
of
different
faiths
19
"cannot
avoid
having
their
Because Plaintiffs bring their claims under the First and Fifth
Amendments, not Title VII, disparate impact is not sufficient to
sustain their claims; our Court of Appeals has held that they
must
demonstrate
intentional
discrimination
or
objective
religious endorsement.
In re Navy Chaplaincy III, 738 F. 3d at
429-30 (citations omitted) .
- 43 -
judgment
tainted
by
their
beliefs,
denominationally neutral."
dated Sept.
5,
2011
even
when
they
See
Decl.
of
5,
2011,
Leuba Decl. ")
("Sept.
Harald
try
Leuba,
at
to
be
Ph.D. ,
11,
21
[Dkt. No. 99-3]
In
fact,
Dr.
Leuba
emphasizes
discrimination on a
promotion board
indeed"
and
id.
intentional,
of
the
Navy's
dated
2 8,
knowing,
individual
Religious
Nov.
original) . 20
20
at
11,
that
he
does
that
"would be
"not
a
opine
intentional
RARE
that
occasion
this
is
denominational discrimination on the part
chaplains."
Preferences,
2011,
Therefore,
at
45
Statistical
Decl.
[Dkt.
Plaintiffs'
[of
No.
Evidence
Harald
147-10]
statistical
Leuba,
of
the
Ph.D.]
(emphasis
evidence
in
does
Dr.
Leuba' s
analysis
also
suffers
from
a
series
of
methodological flaws, one of which is that he "made no attempt
to control for potential confounding variables"
other than
religious denomination, such as "promotion ratings, education,
or time service," that might account for the disparities he
observed.
In re Navy Chaplaincy III, 738 F.3d at 429 (observing
that Dr. Leuba's analysis "does little for our analysis" because
"[c] orrelation is not causation") (citation and quotation marks
omitted); see also Sept. 5, 2011, Leuba Decl. at 21 ("The data
show statistical correlation; they do not demonstrate intent or
cause.") .
This failure renders his analysis of little value in
establishing that faith group membership is, in fact, the cause
of the observed disparities. See Love v. Johanns, 439 F.3d 723,
731
(D.C.
Cir.
2006)
("[T]here are countless other,
nondiscriminatory explanations for any patterns in the USDA's
lending data.
Instead of conducting a relatively simple
statistical analysis (such as a multiple regression) to control
for any or all of these variables, [plaintiffs' expert] simply
reported a series of elementary cross-tabulations, from which it
is impossible
as a statistical matter
to draw meaningful
conclusions.") (citations omitted)
- 44 -
not
constitute
"significant
discrimination or religious
proof"
that
intentional
endorsement
is
or was
religious
Defendants'
"standard practice."
For
all
of
the
foregoing
demonstrated the existence of a
question why was I
reasons,
have
not
"common answer to the crucial
disfavored."
(emphasis in original) .
Plaintiffs
Wal-Mart,
Consequently,
131 S.
Ct.
at 2552
they have not satisfied
the commonality requirement of Rule 23(a) (2).
2.
Typicality
Plaintiffs also fail to satisfy the typicality requirement
of Rule 23 (a) (3).
This provision requires that "the claims or
defenses of the representative parties are typical of the claims
or defenses of the class."
commonality
requirement,
Like the
Fed. R. Civ. P. 23 (a) (3).
it
seeks
to
"measure
the
degree
of
interrelatedness between the claims in a class action," but it
"is
more
legal
exacting because
it
requires
sufficient
factual
and
similarity between the class representative's claims and
those of the class to ensure that the representative's interests
are
in fact
aligned with those of the absent
William B. Rubenstein, Newberg on Class Actions
2013).
The typicality requirement
class members."
§
3:31
(5th ed.
is satisfied only "if each
class member's claim arises from the same course of events that
led to the claims of the representative parties and each class
-
45 -
member makes
similar legal
liability."
Pigford v.
arguments
Glickman,
to prove the defendant's
182 F.R.D.
341,
349·
(D.D.C.
1998).
As discussed,
Plaintiffs have not shown that their claims
have even a single question of law or fact in common with any of
the absent class members.
to conclude that
Consequently,
their claims
it would be impossible
"arise from the
same
course of
events" or are otherwise "typical" of the absent class members
claims.
See Falcon,
457 U.S.
at 157-58 n .13
"commonality and typicality requirements
(noting that the
tend to merge") ;
Daskalea v. Washington Humane Soc.,
275 F.R.D. 346,
2011)
met
(typicality
requirement
not
where
358
"members
(D.D.C.
of
proposed class suffered a wide range of deprivations
the
and
claim distinct injuries"); Webb v. Merck & Co., Inc., 206 F.R.D.
399,
408
together
(E.D.
and
Pa.
in
(analyzing commonality and typicality
concluding
"[p] laintiffs were
divisions,
2002)
that
employed
different
neither
in different
facilities
more
than
a
states,
at
met
because
in different
different
levels
In essence, this action is
within the company hierarchy.
nothing
and
were
consolidation
individualized disparate treatment.").
- 46 -
of
20
accounts
of
In sum,
Plaintiffs have also failed to meet the typicality
requirement of Rule 23 (a) (3) . 2 l
3.
The
23 (a)
is
Adequacy of Representation
final
requirement
that
"the
for
class
representative
certification under Rule
parties
will
adequately protect the interests of the class."
23 (a) (4).
that
(1)
fairly
and
Fed. R. Civ. P.
"The adequacy requirement is satisfied upon a showing
there is no conflict of interest between the proposed
class representative and other members of the class, and (2) the
proposed
class
representative
will
vigorously
prosecute
the
Alvarez v.
interests of the class through qualified counsel."
Keystone Plus Constr. Corp., No. 13-602, 2014 WL 1400846, at *6
(D.D.C. Apr.
"The
inquiry
requires
11, 2014)
into
the
(citations and quotation marks omitted).
adequacy
district
purpose of Rule
23 (a) (4)
of
representation,
court's
is
close
scrutiny,
in
particular,
because
to ensure due process
the
for absent
class members, who generally are bound by a judgment rendered in
a class action."
Rattray v. Woodbury County,
614 F.3d 831, 835
(8th Cir. 2010).
Defendants
representatives
2
argue
because
that
Plaintiffs
"their
paramount
are
not
interest
adequate
in
this
Having concluded as much, the Court need not reach Defendants'
challenge to Plaintiffs' "mix and match" theory of typicality.
See Opp'n at 41-42.
l
- 47 -
litigation
is
the
advancement
of
their
collective
goal
of
institutional reform," which is not necessarily aligned with the
individual interests of each class member.
Opp'n at 45-46.
The
Court agrees.
By bringing
their
claims
in
this
Court,
where
they
are
limited to declaratory and injunctive relief, rather than in the
Court of Federal Claims,
where no such limits are present,
and
by further seeking to certify the class under Rule 23(b) (1)
and
(b) (2),
Plaintiffs
are
jeopardizing
the
rights
of
individual
class members to seek the full range of remedies to which they
may
be
entitled.
See
Wal-Mart,
131
8. Ct.
at
2559
(noting
"perverse incentives for class representatives to place at risk
potentially valid claims for monetary relief" in order to ensure
class
certification) .
desire
Plaintiffs'
for
wide-ranging
institutional reform therefore may very well be in conflict with
the interests of specific class members to obtain individualized
and/or monetary relief.
Furthermore,
proposed
class
Plaintiffs
members'
have
repeatedly
interests
in
thei:J;" claims to their campaign for
example,
trial,
rather
Plaintiffs
than
a
series
adjudication
institutional reform.
expeditiously
filed
prompt
subordinated
of
preparing
this
unsuccessful
the
of
For
case
for
motions
for
injunctive relief and related appeals, which have taken years to
- 48 -
resolve.
295
See Chaplaincy of Full Gospel Churches,
(describing
petitions")
Plaintiffs'
"prolonged
series
454 F. 3d at
of
motions
and
(citations omitted).
In 2006,
further delaying any prompt adjudication of this
lawsuit,
Plaintiffs
granting
class
moved
this
Court
certification.
to
They
vacate
its
acknowledge
Order
that
one
significant reason for that request was to permit their counsel
to
file
Gibson as
a
new putative
ju~isdiction
and
perceived as
hostile to
thereby
avoid
class
action
rulings
their quest
for
of
in a
this
separate
Court
institutional
they
reform.
See Pl.'s Reply at 27; Pl.'s Opp'n to Defs. Mot. for P. Summ. J.
at 30-31 [Dkt. No. 172]
Thereafter,
in
22
conjunction
with
Plaintiffs took further actions that
progress of this case.
the
filing
of
Gibson,
significantly delayed the
For example,
after the District Court
sitting in the Northern District of Florida granted Defendants'
motion to transfer Gibson to this Court,
Court
to
appealed
22
stay
the
the
Florida
case
while
District
their
Court's
Plaintiffs asked this
counsel
transfer
unsuccessfully
order
to
the
Plaintiffs suggest that class decertification was a "logical"
step because of the Court's "four-year delay in defining the
class [.]"
Pls.' Reply at 27.
Yet there is no indication that
Plaintiffs ever asked the Court to define the class or that its
failure to do so resulted from anything other than the extensive
including
litigation surrounding other issues in the case,
Plaintiffs' many Motions for injunctive relief.
- 49 -
Court of Appeals for the Eleventh Circuit.
4.
Thereafter,
Court
to
Plaintiffs
transfer
Gibson
filed
back
yet
to
another
the,
Florida, which was also unsuccessful.
6.
See Gibson Dkt. No.
motion
Northern
in
this
District
of
See Gibson Dkt. Nos. 5 &
These actions alone set the progress of this case back by
approximately two years.
Moreover,
in 2006,
able
to
in moving for class decertification in this case
Plaintiffs stated that they were "no longer willing or
represent
representing
the
or
to
class"
assume
because
the
of
burdens
recent
employment status and other life transitions.
Vacate Order Granting Pls.'
Dkt.
No.
156].
Mot.
inherent
changes
to
in
their
See Pls.' Mot. to
to Certify Class at 2
Plaintiffs have not explained why,
[Adair
having once
abandoned their willingness to represent the class, they are now
willing and able, once again, to serve as class representatives.
Finally,
the
Court
notes
the
existence
different type of conflict of interest.
Motion,
Plaintiffs
have
deviated
of
an
entirely
In the context of this
significantly
from
their
original core allegation that the Navy's bias lies against Nonliturgical Protestants as a class.
actually
such
as
favors
certain
Baptists,
"liberal"
but
They now argue that the Navy
Non-liturgical
disfavors
"[t]heologically
conservative" Non-liturgical denominations.
- 50 -
Protestants,
Mot. at 17-18.
more
Plaintiffs'
readiness
to
draw
divisions
among
members
of
the proposed class strongly indicates that they cannot be fair
and impartial representatives of the class as a whole.
class members
(or
those
of
other
"liberal"
faiths)
Baptist
might
have
legitimate concerns that Plaintiffs will not zealously represent
their
interests.
Cir.
(D.C.
See
1974)
Phillips
("Class
antagonistic in fact to,
v.
Klassen,
members
502
whose
F. 2d
362,
366
are
interests
or even 'potentially conflicting' with,
the interests of the ostensibly representative parties cannot be
bound,
consistent with the
adjudication
311
u.s.
In
taken
32, 41-42
sum,
entirety,
in
their name."
(1940))
Plaintiffs'
raises
requirements of
serious
due process,
to
(quoting Hansberry v.
an
Lee,
23
litigation
questions
record,
as
to
considered
whether
in
they
its
will
properly protect and prioritize the welfare and interests of the
class members,
from
their
reform.
Cf.
especially to the extent
determination
to
obtain
broad
E. Texas Motor Freight Sys.
23
such interests diverge
scale
Inc. v.
institutional
Rodriguez,
431
While the Court acknowledges that some of the named Plaintiffs
are themselves Baptist, that fact does not resolve its concerns.
Other Baptist chaplains, as well as chaplains of deriominations
that Plaintiffs consider to be "liberal," may or may not agree
with Plaintiffs' view that they are "favored" by the Navy's
policies and may, in any event, be concerned that Plaintiffs'
counsel will treat them differently from other members of the
class.
- 51 -
U.S. 395, 405
(1977)
(named plaintiffs' request for relief that
was inconsistent with vote of class members and their "failure
to
protect
the
interests
certification
surely
bears
representation
that
of
those
class
members
strongly
class
on
the
members
by
moving
adequacy
for
of
the
expect
might
receive")
For
all
of
the
foregoing
reasons,
Plaintiffs
have
not
demonstrated that they are adequate class representatives.
C.
Rule 23 (b)
Even
assuming
Plaintiffs
had
the
satisfied
four
prerequisites set forth in Rule 23(a), they would still bear the
burden of establishing that the class is maintainable under one
of
the
subdivisions of Rule 23 (b) .
As discussed below,
they
also fail to meet this burden.
1.
Under
requiring
Rule 23(b)(l}
Rule
the
23(b) (1),
prosecution
certification
of
separate
is
appropriate
actions
by
where
individual
class members would run the risk of establishing "incompatible
standards
of
23(b) (1) (A);
conduct"
or
where
practical matter,
other members
not
for
the
defendants,
individual
Fed.
adjudications
R.
would,
Civ.
"as
P.
a
be dispositive of the interests of the
parties
to
would substantially impair or
the
individual
adjudications
or
impede their ability to protect
- 52 -
their interests."
"always
some
defendant
Fed. R. Civ. P. 23 (b) (1) (B).
risk''
that
to conflicting
individual
Since there is
actions
may
judgments on liability,
expose
a
certification
under subdivision (b) (1) (A)
requires "something more
namely, a
legitimate
separate
establish
risk
that
actions
'incompatible standards of conduct, '"
actions
365
"'impossible or unworkable. '"
(emphasis
in
original) (citing
Newberg on Class Actions§ 4:4
2
may
so as to make individual
Daskalea,
H.
275 F.R.D.
& A.
Newberg
at
Conte,
(4th ed. 2002)) and Wal-Mart, 131
S. Ct. at 2558)
The Court finds virtually no risk that prosecuting separate
actions
by
individual
class
"incompatible standards of
five
district
courts
conduct"
and two
Plaintiffs' allegations
members
Courts
establish
would
At
for Defendants.
of Appeals
have
least
examined
(or substantially similar ones) over the
past decade and none has found the Navy's current policies to be
unlawful,
much less accepted Plaintiffs'
such policies
legitimate
establish
24
in their entirety. 24
risk
that
incompatible
Consequently,
maintaining
standards
invitation to rewrite
of
separate
conduct
there
actions
for
is no
would
Defendants.
See In re Navy Chaplaincy III, 783 F.3d at 429-431, Larsen I,
525 F.3d 1; Larsen II, 887 F. Supp. 2d 247; Larsen v. U.S. Navy,
486 F. Supp. 2d 11 (D.D.C. 2007); Wilkins Mem. Op. of June 29,
2005, aff'd 232 F. App'x 710 (9th Cir. 2007); Sturm Mem. Op. of
June 18, 2002, aff'd 76 F. App'x 833 (9th Cir. 2003);
- 53 -
Likewise,
ability of
contrary:
have
separate actions would not impair or impede the
nonparties
to protect
their
interests.
Quite
the
allowing the case to proceed as a class action might
preclusive
effect
for
absent
impairing their ability to protect
class
members,
thereby
their own interests.
Wal-
Mart,
131 S. Ct. at 2559
(noting that class certification under
Rule
23 (b) (2)
possibility
members'
created
compensatory-damages
"that
claims
individual
would
be
class
precluded
litigation they had no power to hold themselves apart
by
from").
Requiring separate actions, however, will not prevent any absent
class member from challenging the Navy's personnel practices or
bringing an individual discrimination claim in the future.
Consequently,
Plaintiffs have not
shown that the proposed
class is maintainable under Rule 23(b) (1).
2.
Rule
class
has
generally
Rule 23 (b) (2)
23 (b) (2)
acted
to
the
is
or
satisfied where
refused
class,
so
to
act
that
corresponding declaratory relief
"the party opposing the
on
final
is
grounds
injunctive
appropriate
class as a whole[.]"
Fed. R. Civ. P. 23(b) (2).
(b) (2)
indivisible
class
is
the
declaratory remedy warranted
nature
of
the
that
apply
relief
or
respecting the
The "key to the
injunctive
or
the notion that the conduct
is
such that it can be enjoined or declared unlawful only as to all
- 54 -
of the class members or as to none of them."
125
(citing
Wal-Mart,
131
S.
Ct.
at
D.L., 713 F.3d at
2557)
(quotation
marks
omitted) .
Rule 23 (b) (2)
thus
"applies only when a single injunction
or declaratory judgment would provide relief to each member of
the class.
It does not authorize class certification when each
individual
class
member
would
be
entitled
to
a
different
injunction or declaratory judgment against the defendant."
(citing Wal-Mart,
for
class
Thus,
131 S. Ct. at 2557).
plaintiffs
to
Id.
it is not enough
"superficially structure[]
their
case
around a claim for class-wide injunctive and declaratory relief
. if as a substantive matter the relief sought would merely
initiate
a
process
through
which
individualized
highly
determinations of liability and remedy are made;
relief would be class-wide in name only,
and it would certainly
Jamie S. v. Milwaukee Pub.
not be final."
this kind of
Sch.,
668 F.3d 481,
498-99 (7th Cir. 2012).
As
discussed
above,
Plaintiffs
have
not
identified
any
"common harm suffered as a result of a policy or practice that
affects
each
class
member."
Id.
relief they seek under Rule 23(b) (2)
Furthermore,
the
primary
is an order declaring the
results of each of their respective selection board proceedings
"void ab initio."
Assuming such an order is available under the
- 55 -
case
law
"final"
merely
in
this
relief
to
initiate
Circuit,
the
a
class
process
seek reinstatement,
it
certainly
as
a
would
whole.
by which
not
constitute
Instead,
would
chaplains
individual
it
would
new selection board proceedings,
correction
of their personnel records, and backpay.
For
these
reasons,
Plaintiffs
have
not
shown
that
the
proposed class is maintainable under Rule 23(b) (2).
Rule 23 (b) (3)
3.
Finally,
Plaintiffs seek certification under Rule 23 (b) (3).
Certification
under
questions
of
law
over
questions
any
this
or
subsection
fact
common
affecting
is
to
only
appropriate
class
members
individual
where
"the
predominate
members"
and
"a
class action is superior to other available methods for fairly
and efficiently adjudicating the controversy."
Fed.
23(b)(3).
duplicates
"[T]he
commonality
demanding"
the
analysis
and delves
common
issues
to
(citing Amchem Prods.,
and Barnes v.
2007)).
23 (b) (3)
in
many
respects,"
"further into the
the
case."
a
class
but
275
be
and promote uniformity of
- 56 -
P.
the
"far
F.R.D.
more
113,
certified
decision as
at
624
123
368
(1997)
(D.D.C.
under
"only when it would achieve economies of time,
and expense,
Civ.
importance of
521 U.S. 591,
242 F.R.D.
should
is
relative
Daskalea,
Inc. v. Windsor,
District of Columbia,
Ultimately,
inquiry
predominance
R.
Rule
effort,
to persons
similarly situated,
bringing
Corp.,
about
without
other
624 F.3d 537,
sacrificing procedural
undesirable
547
(2d Cir.
results."
2010)
fairness
Myers
v.
or
Hertz
(citation and internal
punctuation omitted))
Here,
Plaintiffs
under Rule
23 (a) (2) ,
have
and
failed
to
therefore,
demanding"
demonstrate
commonality
they necessarily fail
requirement
to
satisfy the
"far more
of predominance.
Furthermore,
for all of the many reasons set forth above, class
certification would not achieve economies of time,
expense,
but
effort,
instead would exponentially complicate
the
and
case;
place at risk individual claims of absent class members that may
overlap with the allegations in the Consolidated Complaint; and
jeopardize Defendants'
on
myriad
Exercise
rights
fact-specific
harm.
In
sum,
to
claims
individualized determinations
of
discrimination
Plaintiffs
have
also
and
failed
Free
to
demonstrate that the proposed class is maintainable under Rule
23(b)(3).
- 57 -
IV.
CONCLUSION
For
denied,
the
foregoing
reasons,
Plaintiffs'
Motion
shall
be
and their claim relating to the Thirds Policy shall be
dismissed for lack of subject matter jurisdiction.
September 4, 2014
Copies to: attorneys on record via ECF
-
58 -
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