IN RE: NAVY CHAPLAINCY
Filing
194
MEMORANDUM OPINION to the Order on the Motions for Partial Summary Judgment. Signed by Judge Gladys Kessler on 9/26/14. (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 Non-liturgical Protestant
chaplains in the United States Navy,
and
a
fellowship
churches,
of
of
their endorsing agencies,
non-denominational
Christian
evangelical
bring this consolidated action against the Department
the Navy and several
of
Plaintiffs allege
its officials.
that Defendants discriminated against Non-liturgical Protestant
chaplains on the basis of their religion,
maintained a culture
of denominational favoritism in the Navy, and infringed on their
free exercise and free speech rights.
This
Motions
matter
for
Defendants'
is
Partial
Motion
before
the
Court
Summary Judgment.
[Dkt.
No.
159],
on
the
Upon
parties'
Cross-
consideration of
Plaintiffs'
Opposition and
Cross-Motion [Dkt. No. 172], Defendants' Reply and Opposition to
the Cross-Motion
Cross-Motion
for
the
[Dkt.
[Dkt.
reasons
No.
set
No.
189],
182],
and Plaintiffs'
Reply to the
and the entire record herein,
forth below,
Defendants'
Motion shall
granted and Plaintiffs' Cross-Motion shall be denied.
and
be
I .
BACKGROUND
The Navy Chaplain Corps 1
A.
The Navy employs a corps of chaplains
"CHC")
whose
mission
religion by members
authorized persons.
Cir. 2004)
Navy
to provide
of
the Navy,
to
for
provide
sailors
involving
chaplain's
simultaneous
representative[]'
a
Manual
Chapl,ains
must
of
and other
11 71
(D . C .
education,
Marines
and
role
as
advise
commanders
and
on
Id.
within
service
counseling,
the
service
clergy
or
a
is
'unique, '
'professional
of a particular religious denomination and as
commissioned naval
Chaplains
exercise
3 7 5 F . 3d 116 9 ,
religious, moral, and ethical issues.
"A Navy
free
In accordance with this mission,
religious
and
the
their dependents,
In re Eng 1 and,
(citation omitted).
chaplains
support
is
("Chaplain Corps" or
officer."
1-2-1-3
have
a
Id.
(Dep't
of
graduate
1
(citing OPNAVINST 1730.1,
the
level
Navy Oct.
theology
3,
1973)).
degree
or
In setting out the disputed and undisputed facts on a motion
for summary judgment, a court typically relies on the parties'
Statements of Undisputed Material Facts submitted pursuant to
Local Civil Rule 7(h).
The parties in this case submitted Rule
7(h) Statements, but instead of setting forth facts related to
the timeliness of Plaintiffs' claims (the only issue presented
in this Motion), the parties submitted 139 pages of argument on
the merits of Plaintiffs' claims.
The Rule 7(h) Statements are
therefore
of
little
value
for
their
intended
purpose.
Accordingly, the Court confines its factual recitation to basic
undisputed background information set forth in the Plaintiffs'
Consolidated Complaint and prior decisions issued in this case.
-
2
-
equivalent
while
also
meeting
the
physical
and
educational
requirements applicable to all commissioned officers.
addition,
chaplains must be endorsed by a faith-group endorsing
agency as
qualified
to
represent
within the Chaplain Corps.
There
are
Department
"faith
of
Worship.
over
faith
which
particular
faith
groups
the
recognized
Navy
has
group
of:
by
the
into
grouped
consisting
categories"
Protestant,
that
Id. at 1172.
100
Defense,
group
Liturgical
2012)
In
Id.
four
Roman
Non-liturgical
In re Navy Chaplaincy,
Protestant,
Catholic,
and
697 F. 3d 1171, 1173
Special
(D.C. Cir.
("In re Navy Chaplaincy II").
The
Liturgical
denominations
Reformation,
Protestant
that
trace
practice
category
their
infant
includes
origins
to
and
baptism,
Protestant
the
Protestant
conduct
services
In re
according to a prescribed liturgy or order of worship.
England,
375
Episcopal,
Compl.
~
F.3d
at
Methodist,
6 (b) .
1172.
and
This
group
Presbyterian
includes
faiths.
Id.;
Lutheran,
Consol.
The Non-liturgical Protestant category includes
Protestant denominations that do not follow a formal liturgy and
baptize at the "age of reason," including Baptist, Evangelical,
Pentecostal,
Bible
Church,
and
England,
375 F.3d at 1172; Consol.
Worship
group
includes
Charismatic
Compl.
denominations
-
3 -
~
not
faiths.
6(c).
In
re
The Special
covered
by
the
Protestant
Hindu,
and
Roman
Buddhist,
Mormon,
and
Churches v.
Muslim,
England,
~
categories,
Jehovah, s
Unitarian
Consol. Compl.
B.
Catholic
faiths.
454
including
Witness,
Christian Science,
Chaplaincy
of
295 n.3
(D.C.
F.3d 290,
Jewish,
Full
Gospel
Cir.
2006);
6 n.5.
The Navy's Personnel System
Chaplains enter the Navy through a civilian clergy program
or
a
theological
Thereafter,
student
they are
program.
subject
to
Consol.
the
~
Compl.
same personnel
44 (c) .
system as
other naval officers and must be selected for promotion in rank
when the needs of the service require.
at
1172
(citing
10
U.S.C.
In re England, 375 F.3d
611(a))
§
If
considered but not selected for a promotion,
to
have
"failed
of
selection."
Churches, 454 F.3d at 293.
an
officer
is
he or she is said
Chaplaincy
of
Full
Gospel
After failing of selection on two or
more occasions, an officer is subject to involuntary separation,
known as
(b) .
"sel~ctive
However,
the Navy may elect
active duty despite
needs require.
early retirement."
two or more
See 10 U.S.C.
§
to
See 10 U.S.C.
continue
failures
§
632 (a)-
an officer on
of selection as
its
632 (c) (2).
Each of these decisions regarding a naval officer s career
1
promotion,
active
duty
selective
is
made
early
by
retirement,
a
- 4
"selection
-
and
continuation
board"
composed
on
of
superior officers who act pursuant
to
statute and regulations
u.s.c.
prescribed by the Secretary of Defense.
See 10
612. 2
selection
Under
the
of
seven
composed
officers.
current
procedures,
members :
two
chaplains
611,
boards
are
five
other
697 F. 3d at 1173.
In re Navy Chaplaincy II,
and
§§
Each
board member takes an oath to perform his or her duties "without
prejudice
fitness
u.s.c.
or
of
partiality and
officers
and
the
having
in view both
efficiency of
the
special
[the
Navy] "
10
and
"may
be
613.
§
Selection
board
proceedings
are
secret
disclosed to any person not a member of the board,
not
except as
authorized or required to process the report of the board."
u.s.c ..
§
614 (a).
discussions,
In
furtherance
deliberations,
notes,
of
this
mandate,
and records are
10
board
statutorily
immune from legal process and "may not be used for any purpose"
in any judicial or administrative proceeding without the consent
of the Secretary of the Navy.
10 U.S.C.
2
§
613a.
Selection boards operate differently depending on the rank and
type of personnel action under consideration.
See generally 10
U.S.C. §§ 611, 612.
Unless otherwise stated, the Court will use
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 -
C.
Plaintiffs' Claims
Plaintiffs challenge several current and historical aspects
of the CHC's personnel system.
The following is an illustrative
sampling of their claims. 3
First,
they
recognized
Consol.
by
Compl.
contend
the
~~
Navy
33-38.
that
the
are
faith
group
categories
and
arbitrary.
discriminatory
In particular,
they claim that
the
categories reflect neither religious demographics nor legitimate
similarities
or
differences
among
the
traditions
worship
represented.
Second,
they allege
that
in the
past
(but
not
since
at
least 2002), the CHC used religious quotas to apportion chaplain
opportunities among various faith groups.
35.
In particular,
they allege
that,
~~
Consol. Compl.
from
1976
until
33-
1986,
Defendants implemented a policy of appointing at least two Roman
Catholic
chaplains
to
every
board (the "2 RC Policy")
a
similar
chaplain
Compl.
~~
policy
to
every
8, 57(e).
of
career-grade
and,
board
selection
from 1986 until 2002, maintained
appointing
such
chaplain
at
(the
least
one
"1
Policy") .
RC
Roman
Catholic
Consol.
According to Plaintiffs, the "1 RC" and "2
Plaintiffs' Consolidated Complaint exceeds 120 pages and
asserts eighteen separate counts.
For purposes here, the Court
confines its discussion to the claims Defendants contend are
time-barred.
- 6 -
Policies
RC"
proceedings
were
against
designed
to
Non-liturgical
selection
"stack"
candidates
board
and in favor of
Roman Catholic and Liturgical Protestant chaplains despite their
Consol.
allegedly declining numbers in the broader population.
Compl.
··~~
57 (e)- (g) . 4
Defendants deny that such policies ever
existed.
Third,
Plaintiffs
personnel practices -
challenge
a
number of
both current and historical
believe have allowed religious bias
outcomes.
boards;
(1)
include:
to
the
infect
small
-
that they
selection board
size
of
selection
(2) the placement of two chaplains on each board, one of
whom is
deputies;
which
These
facially neutral
either
and
board
the
(3)
Chief
the
members
confidence in a
use
Chaplains
of
"secret
anonymously
or one
of
confidence
indicate
their
his
or her
voting,"
in
degree
of
candidate in 25-degree increments ranging from
zero to one hundred.
taken together,
of
Plaintiffs
"enable[]
claim that
these practices,
each board's chaplains to ensure that
a particular candidate will not be promoted, thus increasing the
4
Plaintiffs also originally alleged that,· between 1986 and 2000,
the Navy employed a so-called "Thirds Policy" under which it
reserved roughly one
third of
chaplain opportunities
to
Liturgical Protestants,
one third to "Non-liturgical faith
groups,"
and one third to
"Others,"
including Catholics.
Consol. Compl. ~~ 33, 35, 43.
However, the Court has recently
dismissed that claim for lack of subject matter jurisdiction.
See In re Navy Chaplaincy, No. 7-269, 2014 WL 4378781, at *6-9
(D.D.C. Sept. 4, 2014) ("In re Navy Chaplaincy V").
- 7 -
odds for their preferred
(and discriminatory)
results."
Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013)
In re
("In re Navy
Chaplaincy IV").
Plaintiffs
also
challenge
a
practice,
which they concede
has not existed since 2002, in which "each selection candidate's
three-digit
displayed
Compl.
~
'faith
group
throughout
86.
the
identifier'
selection
code
board
was
prominently
Consol.
process."
Plaintiffs contend this practice had no purpose
other than "to identify a candidate's faith group to the board"
for purposes of permitting the board members "to exercise their
individual
or
faith
group
chaplains or faith groups,
chaplains."
~
Id.
prejudice
for
or
against
other
particularly against Non-liturgical
87.
Fourth and finally,
Plaintiffs
seek relief
relating to a
variety of specific instances, many of which date back as far as
the
1970s
and
discrimination
Chaplain Corps.
41.
1980s,
and
free
in
which
exercise
they
harm
suffered
allegedly
while
serving
See Addendum 1 to Consol. Compl.
~~
in
the
12, 21, 37,
These include occasions on which Plaintiffs claim to have
been:
(1) retaliated against, criticized, and removed from their
posts based on the
content
treated differently
from Liturgical
chaplains with
disciplinary
and
benefits;
issues
of
their
employment
- 8 -
religious
teachings;
(3)
(2)
respect
to
required
to
officiate
general
at
Liturgical
policies
disfavored
services;
that,
while
certain aspects
of
and/or
not
subjected
(4)
facially
their worship
to
discriminatory,
traditions.
See
generally id. ~~ 1-65. 5
D.
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");· and
("CFGC");
Gibson
Adair v.
v.
Dep't
England,
of
Navy,
Civ.
Civ.
No.
00-566
No.
06-1696
("Gibson") .
CFGC
1999~
and Adair were
and March 17,
filed
2000,
in
this
Court
respectively,
on November
and were
5,
consolidated
for pretrial purposes on September 26, 2000
[Adair Dkt. No. 21].
On
filed
April
28,
2006,
separate
putative
Florida,
and
Plaintiffs'
class
that
case
action
was
2006,
at 1
in
the
Northern
subsequently
District pursuant to 28 U.S. C.
August 17,
counsel
§
1404.
[Gibson Dkt. No.
5
Gibson
District
transferred
See Mem.
1].
as
to
a
of
this
Order,
dated
On June 18 ,
2 0 07 ,
In addition to the above claims, Plaintiffs also contend that
Defendants fraudulently concealed "evidence of prejudice and
bias in the selection process," and that the statute mandating
secrecy in selection board proceedings, 10 U.S.C. § 613a, is
unconstitutional as applied to them.
See Consol. Compl. ~~ 187203, 218-224.
However, the only specific relief they seek in
relation to these claims is the removal of certain impediments
to litigating this case.
- 9 -
the Court consolidated all three actions,
raise
"substantially
similar
Navy Chaplaincy program."
concluding that they
constitutional
challenges
to
the
Mem. Order, dated June 18, 2007, at 4
[Dkt. No. 11].
Approximately six months after Adair was filed,
moved to dismiss
a
number of
Plaintiffs'
claims,
Defendants
arguing,
they do in this Motion, that the claims are time-barred.
Dkt. No. 19].
on
[Adair
On January 10, 2002, the Court denied that Motion
without prejudice,
barred
as
their
finding that although the claims were timeface,
Plaintiffs
alleged
equitable tolling of the limitations period.
183 F. Supp. 2d 31, 54-55 (D.D.C. 2002)
facts
to
support
Adair v. England,
("Adair I") . 6
Shortly thereafter, the Adair Plaintiffs filed a Motion for
Class Certification, which the Court granted on August 19, 2002.
See
generally
("Adair II").
Adair
v.
England,
209
F.R.D.
5
(D.D.C.
Approximately one week after Plaintiffs'
2002)
counsel
filed Gibson as a separate putative class action in the Northern
District
of
Florida,
however,
the
6
Adair
Plaintiffs
moved
to
Defendants again raised their statute of limitations defense in
2 0 03, in opposition to the Adair Plaintiffs' Motion to Amend
their Complaint, and the Court again rejected it as premature.
The Court promised, however, to "reconsider the defendants'
argument regarding the statute of limitations if the defendants
raise it in a motion for summary judgment after the close of
discovery."
Adair v. Johnson, 216 F.R.D. 183, 188 n.8 (D.D.C.
2003) ("Adair III").
- 10 -
vacate the Class Certification Order granted by this Court on
August 19, 2002, on the basis that they were "no longer willing
to
represent
Vacate
On
the
class."
~utative
[Class Certification]
May
30,
2006,
the
See
Order at
Court
1
granted
Adair
Pls.'
[Adair Dkt.
that
decertified the proposed class in Adair.
Motion
Mot.
No.
to
156] .
and
then
See Adair Minute Order
of May 30, 2006. 7
Between
2002
and
2009,
the
parties
conducted
discovery,
interspersed with collateral litigation and three interlocutory
In 2012, Judge Ricardo Urbina, the
appeals to the D.C. Circuit.
District Judge previously assigned to this case, retired and the
case was reassigned to the undersigned.
on October 3,
[Dkt.
No.
2012,
134]
Plaintiffs
comprised of
At the Court's request,
filed a
all
the
Consolidated Complaint
claims
at
issue
in
the
consolidated case.
On February 22,
for
2013,
Partial
Judgment
defense
their
Partial
7
[Dkt.
Summary
No.
Opposition
Summary
159].
to
Defendants filed the present Motion
on
On April
Defendants'
Judgment
their
[Dkt.
5,
statute
2013,
Motion
No.
172] .
and
of
limitations
Plaintiffs
filed
Cross-Motion
On
May
22,
for
2013,
After Gibson was transferred to this Court, Plaintiffs filed a
Renewed Motion for Class Certification, which the Court recently
denied in light of the Supreme Court's intervening decision in
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).
See In
re Navy Chaplaincy V, 2014 WL 4378781, at *9-20.
- 11 -
Defendants filed their Reply to the Motion and Opposition to the
Cross-Motion [Dkt. No. 182].
On July 1, 2013, Plaintiffs' filed
their Reply in support of their Cross-Motion [Dkt. No. 189].
II.
LEGAL STANDARD
A party may move for summary judgment as to any claim or
defense,
or I?art thereof,
and the motion should be granted if
the movant establishes that there is no genuine dispute as to
any material fact and the issue may be resolved as a matter of
law.
Fed. R. Civ. P. 56(a)
over
it .might
law [.]"
affect
Holcomb v.
(quoting Anderson
(1986)).
v.
the
Powell,
"A fact is 'material' if a dispute
outcome
of
a
suit
433 F.3d 889,
Liberty
Lobby,
under
895
Inc.,
(D.C.
477
governing
Cir.
U.S.
2006)
242,
248
A dispute is "genuine" if the evidence is such that "a
reasonable jury could return a verdict for the nonmoving party."
Id.
The party seeking summary judgment "bears the heavy burden
of establishing that the merits of his case are so clear that
expedited
action
is
justified."
Taxpayers
Watchdog,
Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987).
Inc.,
v.
"A party asserting
that a fact cannot be or is genuinely disputed must support the
assertion
record,"
by
citing
including
to
particular parts
depositions,
of
materials
documents,
in
the
affidavits,
admissions or other materials, or by "showing that the materials
- 12 -
cited do
not
dispute,
or
establish the
that
an
absence
adverse
party
evidence to support the fact[.]"
the
movant
meets
its
or presence
cannot
of
produce
a
genuine
admissible
Fed R. Civ. P. 56 (c) (1).
burden,
the
opposing
party
If
must ·come
forward with evidence of specific facts showing that there is a
genuine issue for trial.
Fed. R.
Civ.
P.
56(e); Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986).
In deciding a motion for summary judgment,
"the court must
draw all reasonable inferences in favor of the nonmoving party,
and
it
may
not
evidence."
credibility determinations
Reeves v. Sanderson Plumbing Prods.,
133, 150 (2000).
evidence
make
in
of
the
plaintiff's
insufficient" to survive summary judgment.
against
after
a
party
530 U.S.
position
will
be
Liberty Lobby, Inc.,
As the Supreme Court stated in Celotex Corp.,
"the plain language of Rule 56 (c)
judgment,
Inc.,
the
However, "the mere existence of a scintilla of
support
477 U.S. at 252.
or weigh
adequate
who
time
fails
to
mandates the entry of summary
for
discovery and upon motion,
make
a
showing
sufficient
to
establish the existence of an element essential to that party's
case,
and on which that party will bear the burden of proof at
trial."
477 U.S. at 322.
- 13 -
III. ANALYSIS
Relying on the six-year statute of limitations set forth in
2 8 U.S. C.
§
24 01 (a) , Defendants argue that many of Plaintiffs'
claims are time-barred,
after
finalization
having been filed more than six years
of
the
policies
and
personnel
actions
on
which they are based.
Plaintiffs
U.S.C.
§
agree
that
their
claims
are
governed
by
28
2401(a), which provides that a "civil action commenced
against the United States shall be barred unless the complaint
is
filed
within
accrues."
claims
28 U.S.C.
did
not
discriminatory
that
such
years
§
nature
are
they
after
2401(a).
accrue
claims
alternat~ve,
untimely,
six
until
of
the
right
of
first
They argue, however, that their
they
discovered
the
CHC's
practices
timely
under
Section
contend
action
that
even
if
the
allegedly
and,
therefore,
2401 (a) .
In
their
claims
the
are
the Court should apply equitable tolling doctrines to
permit them to proceed.
If,
the
as
Defendants
policies
became
final,
and
argue,
personnel
many
of
such
language of Section 2401 (a) .
Plaintiffs'
actions
on
claims
are
claims
which
they
barred
In particular,
accrued when
by
are
based
the
plain
unless a
tolling
rule applies, Defendants would be entitled to judgment in their
favor on: all CFGC claims based on policies or personnel actions
- 14 -
finalized prior to November 5,
1993; all Adair claims based on
policies or personnel actions finalized prior to March 17, 1994;
and all
Gibson claims based on policies or personnel
finalized prior to April 28, 2000.
Consequently,
when Plaintiffs'
the Court
See Defs.' Mem. at 8-11.
shall
first
address
the
issue of
claims accrued for purposes of triggering the
six-year limitations period in Section 2401(a).
address
actions
Plaintiffs'
argument
that
the
Then,
limitations
it shall
period
in
Section 2401(a) should be equitably tolled.
A.
Accrual
1.
In
Plaintiffs' Claims Accrued When the Challenged
Policies and Personnel Actions Became Final
general,
a
claim
complete and present
obtain relief[.]"
(D.C. Cir. 20l2)
accrues
when
cause of action"
"the
and
plaintiff
"can file
has
suit and
Earle v. Dist. of Columbia, 707 F.3d 299, 305
(citation and quotation marks omitted).
In employment discrimination cases such as this one,
rule yields different
theory at issue.
a
claim
a
results depending on the
this
specific legal
In particular, the Supreme Court has held that
challenging
a
facially
neutral
employment
policy
as
intentionally discriminatory under Title VII of the Civil Rights
Act of 1964, accrues on the date the policy becomes final,
the date it is applied to the plaintiff.
- 15 -
not
See, e.g., Lorance v.
AT
& T
Technologies,
contrast,
under
a
Title
618,
(1986)),
490
U.S.
claim challenging a
plaintiff.
U.S.
Inc.,
VII
accrues
See
634
when
Ledbetter v.
(2007)
900,
905
By
facially discriminatory policy
the
policy
is
Goodyear Tire
(citing Bazemore v.
applied
Pub. L. No.
to
the
Co.,
550
478 U.S.
385
Rubber
&
Friday,
superseded by statute on other grounds,
Fair Pay Act of 2009,
(1989).
Lilly Ledbetter
111-2,
123 Stat.
rules,
the
5,
42 U.S.C.
§2000e-5 (e). 8
In
light
of
these
different
Supreme
Court
has
"stressed the need to identify with care the specific employment
practice that
for
is at
any particular
issue"
before determining the accrual date
Id.
claim.
at
624
(citing Nat' 1
Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 110-11 (2002)).
In advocating
the
parties
have
for
their
neither
employment
practice [s]
addressed
the
respective
"identif [ied]
that
[are]
possibility
that
8
at
approaches
with
issue"
different
care
to
accrual,
the
specific
in each claim nor
rules
apply
to
Although Plaintiffs do not rely ori Title VII of the Civil
Rights Act of 1964, the essence of their claims is that they
were discriminated against on the basis of their religion.
Therefore, and in the absence of any authority directly on
point, the Court relies on accrual principles developed in the
Title VII context.
See Veitch v. England, 471 F.3d 124, 127
(D.C. Cir. 2006) (relying on Title VII principles to evaluate
former Navy chaplain's constructive discharge claim under the
First Amendment) .
- 16 -
different
claims
depending
on
whether
facially
facially discriminatory practices are at issue.
neutral
or
Defendants are
correct, however, that under any of the rules articulated by the
Supreme
Court
in
the
controlling
cases
set
forth
above,
Plaintiffs' claims could accrue no later than the date on which
the
policies
became final .
and
personnel
See,
53 6 U.S.
at 112-13;
449 U.S.
250,
Title
VII
decision
and
was
258
e.g.,
Ledbetter,
which
they
550 U.S.
are
at 637;
based
Morgan,
Ricks,
(employment discrimination claim under
U.S.C.
made
on
see also Delaware State College v.
(1980)
42
actions
and
§
1981
accrued
communicated
to
at
time
[the
"the
tenure
plaintiff]") .
Therefore, the Court will apply that accrual rule to Plaintiffs'
claims.
2.
The "Discovery Rule" Does Not Apply
Invoking the
"discovery rule"
rule set forth above not
accrue
until
cases
which,
they discovered the
1221-22
allegedly discriminatory
Pls.' Opp' n at 21-22; Pls.'
The discovery rule is most often reserved for tort
unlike
difficult to discover.
1216,
a variant of the general
Plaintiffs argue that their claims did
nature of the practices at issue.
Reply at 17.
-
(2013);
this
case,
involve
injuries
that
are
See, e.g., Gabelli v. S.E.C., 133 S. Ct.
Kifafi
v.
Hilton Hotels
F.3d 718, 729 (D.C. Cir. 2012)
- 17 -
Ret.
Plan,
701
Even assuming,
to this case,
it
however,
that the
is discovery "of the injury,
other elements of a claim [that]
Wood,
52 8 U.S.
"discovery rule"
549,
555-56
the
not
Rotella v.
starts the clock."
(2 00 0)
applied
There is
(emphasis added)
nothing in this record to suggest Plaintiffs were not on notice
of their employment injuries at the time they occurred. 9
Attempting
to
avoid
this
conclusion,
Plaintiffs
seek
to
recharacterize their injury, arguing that it "is not the failure
of
selection,"
but
the
"realization that
the
Navy's
decision
reflects an official position" that is "based on or tainted with
forbidden denom.lnational biases or prejudice."
16-17.
Pl s . '
Opp' n at
This argument fails as well.
Our Court of Appeals has expressly rejected the contention
that
emotional harm "suffered on learning of the government's
constitute[s]
alleged malfeasance
postponing accrual
of a
Cir.
1987)
Sexton v.
United States,
Therefore,
F.2d 629,
637
discovers,
or should have discovered,
9
(D.C.
claim.
an independent injury"
the
832
"an employee who
injury
(the adverse
Plaintiffs concede that "[they] knew they had failed of
selection" when the selection board decisions were announced.
Pls.' Opp'n at 23.
By the same token, they also knew when they
were assigned to inadequate or unsuitable religious facilities;
when they were chastised or disciplined based on the content of
their religious teachings; and when they experienced the many
other acts of discrimination and Free Exercise violations
alleged in their Consolidated Complaint.
- 18 -
employment
decision)
need
not
be
aware
of
the
unlawful
discriminatory intent behind that act for the limitations clock
to start ticking."
F. 3d 1174,
1177
Almond v.
(lOth Cir.
Unified Sch.
2011);
Dist.
No.
501,
665
see also Coppinger- Martin v.
Solis, 627 F.3d 745, 749 (9th Cir. 2010) (same)
(citing cases) . 10
In sum, the discovery rule is not applicable to Plaintiffs'
claims and, in any event, leads to precisely the same conclusion
as the general rule:
Plaintiffs'
claims accrued no later than
the date on which the policies and personnel actions at issue
became final.
3.
Plaintiffs
The "Continuing Violation Doctrine" Does Not
Apply
also
urge
the
Court
to
apply
the
violation doctrine" to the accrual of their claims.
at 17.
This doctrine -
"continuing
Pls.' Opp' n
another variant of the general rule -
stems from judicial recognition that certain events cannot
made the subject of a lawsuit when
typically because it
is only
[they]
[their]
10
"be
first occur[]
cumulative
impact
Plaintiffs' related argument, Pls.' Reply at 3, 16, that their
claims did not accrue until they obtained concrete proof of
discrimination is also easily rejected:
accrual does not depend
on the quantum of evidence in a plaintiff's possession.
As the
Supreme Court held in Rotella, such a rule "would undercut every
single policy" in favor of a statute of limitations and "doom
any hope of certainty in identifying potential liability."
Rotella, 528 U.S. at 555-56.
- 19 -
that
reveals
(citing
[their]
Taylor v.
illegality."
FDIC,
132
Earle,
F.3d
753,
made
clear,
707
765
F.3d
(D.C.
at
Cir.
306
1997);
Morgan, 536 U.S. at 115-16)).
The
Supreme
doctrine,
Court
has
however,
that
this
which is almost exclusively applied to hostile work
environment
claims
discrimination
under
claims
actions ·because a
Title
based
VII
on
"discrete
specific
apply
not
does
I
adverse
to
employment
retaliatory or discriminatory act
'occur[s] on the day that it 'happen[s] '" and is "not actionable
if time barred,
even when
timely filed charges."
[it
is]
Morgan,
related to acts alleged in
536 U.S.
at
110-11;
see also
Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011).
Plaintiffs do not bring any hostile work environment claims
under
Title
explanation
applicable
VII,
as
to
and
why
they
the
fail
to
offer
any
"continuing violation doctrine"
to their First and Fifth Amendment
claims
discriminatory employment decisions and specific
harms.
Their
central
persuasive
argument
is
that
free
is
alleging
exercise
evidence
of
discrimination could not "come to light" until they performed a
"detailed statistical analysis of the chaplain promotion board
results over long periods of time."
just
a
variation
of
their
Pls.' Opp'n at 18.
previously
- 20 -
rejected
This is
argument
that
their claims did not accrue until
they discovered evidence of
the Navy's alleged discrimination.
Furthermore,
the
See supra note 10.
continuing violation doctrine applies
"claims that by their nature occur not
but
'over
Laborers'
2007)
a
series
Health
(emphasis
&
of
days
or
added).
It
'on any particular day'
perhaps
Safety Fund,
478
does
years [ . ] "
F.3d 364,
not
to
368
apply to
search for evidence to prove a discrete claim.
Mayers
(D.C.
v.
Cir.
the cumulative
See Rotella, 528
U.S. at 555-56. 11
In sum, the injuries of which Plaintiffs complain - failure
of selection, selective early retirement, and specific instances
of free exercise harm - are "discrete," even if they are alleged
to
have
been
"undertaken
pursuant
to
a
general
policy
that
results in other discrete acts occurring within the limitations
period."
58
Chin v. Port Auth. of N.Y. & N.J.,
(2d Cir.. 2012), cert. denied,
cases) .
Accordingly,
the
685 F.3d 135, 157-
133 S. Ct. 1724
"continuing
violation
(2013)
(citing
doctrine"
is
inapplicable to the facts of this case.
11
The Court, of course, makes no findings as to the scope of the
evidence on which Plaintiffs may rely to support their timely
claims. See Chin, 685 F. 3d at 150 (noting that the plaintiffs
could rely on "data ·from outside the statute of limitations to
prove timely discriminatory acts") (citation omitted).
- 21 -
B.
Equitable Tolling of the Limitations Period Is Denied
Having concluded that Plaintiffs'
claims accrued no later
than when the policies and personnel
final,
all
claims
of
Plaintiffs
actions
accruing more
at
issue became
than six years
before the commencement of each case are time-barred unless a
tolling rule applies.
Plaintiffs advance two discrete arguments related to such
tolling.
First,
they contend that
the limitations period for
each of the three consolidated cases should be equitably tolled
because
Defendants
wrongdoing.
"fraudulently
Second,
they
contend
that
alleged
their
concealed"
the
"class
action
tolling" doctrine adopted by the Supreme Court in American Pipe
& Construction Co. v. Utah, 414 U.S. 538
(1974) and
Crown, Cork
& Seal Co. v. Parker, 462 U.S. 345, 349 (1983) should be applied
to
Gibson,
which
would
toll
the
limitations
period
for
the
Gibson Plaintiffs during the pendency of the Adair class action.
Defendants
extend
the
counter that
limitations
the Court
period·
in
compliance with that provision is a
of
the Government's waiver of
argue
that,
Plaintiffs
even
fail
to
if
the
present
lacks any authority to
Section
2401(a)
"jurisdictional"
sovereign immunity.
Court
does
evidence
- 22 -
have
from
condition
They also
such
which
because
a
authority,
reasonable
juror could conclude that either tolling doctrine applies to the
facts of this case.
Our
Court
reaffirmed,
of
Appeals
has
that Section 2401 (a)
limitations"
because
it
"long
held,"
is unlike a
"'creates
a
and
recently
"normal statute of
jurisdictional
condition
attached to the government's waiver of sovereign immunity"
"cannot
be
equitable
(D.C.
waived
Under
the
extensions.
Cir.
Eng'rs,
by
2014)
Mendoza
(citing P
516 F.3d 1021,
this
clear
parties"
and
&
1026
v.
and
Perez,
V Enters.
(D.C.
controlling
is
Cir.
not
754
v.
2008)
precedent,
subject
F. 3d
U.S.
that
1002,
to
1018
Army Corps of
(citing cases)) . 12
a
district
court
lacks any authority to extend the limitations period for claims
governed
by
Section
2401 (a) .
Gravel Co. v. United States,
that
court
a
"jurisdictional"
to
consider
Id.;
552 U.S.
statute
whether
of
certain
12
see
also
130, 134
John
(2008)
limitations
equitable
R.
Sand
&
(observing
"forbid[s]
a
considerations
The Court of Appeals has acknowledged that it has "recently
questioned the continuing viability of this holding in light of
recent
Supreme
Court
decisions"
holding
that
statutes
of
limitations in actions against the Government are subject to the
same rebuttable presumption of equitable tolling applicable to
suits against private defendants.
Mendoza, 754 F.3d at 1018
n.11 (citing P & VEnters., 516 F.3d at 1027 & n.2; Felter v.
Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007)); see also
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96
(1990)).
However, unless and until the Court of Appeals
"resolve[s] this issue," Mendoza, 754 F.3d at 1018, this Court
is bound by the law at it currently exists.
- 23 -
warrant
extending
a
limitations
period") .
Consequently,
Plaintiffs' claims for equitable tolling shall be denied. 13
IV.
CONCLUSION
For the foregoing reasons,
Defendants'
Summary Judgment shall be granted,
Motion for Partial
and Plaintiffs'
Cross-Motion
shall be denied.
Jb.
September ~ 2014
Copies to: attorneys on record via ECF
13
Having so concluded, the Court shall not reach Defendants'
alternative argument that the doctrines of equitable tolling
based on fraudulent concealment and class action tolling are not
properly applied to the facts of this case.
- 24 -
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