IN RE: NAVY CHAPLAINCY

Filing 237

MEMORANDUM OPINION to the Order denying the Plaintiffs' Motion for Modification and/or Clarification. Signed by Judge Gladys Kessler on 2/9/16. (CL)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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IN RE: NAVY CHAPLAINCY

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

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MEMORANDUM OPINION

Plaintiffs,

65 current and former Non-liturgical Protestant

chaplains in the United States Navy, their endorsing agencies, and
a fellowship of non-denominational Christian evangelical churches,
bring this consolidated action against the Department of the Navy
and several of its officials.

Plaintiffs allege 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 matter is before the Court on Plaintiffs'
Modification
Dismiss

Certain

("Motion")
Motion,

and/or

[Dkt.

and

Clarification

Plaintiffs
No.

203 J

Plaintiffs'

under

of

the

to

Limitations

Upon consideration of

Plaintiffs'

[Dkt.

Opposition to the Motion [Dkt. No. 208],
______ No._ :212L and the entire record herein,

Statute

Decision

of

Errata

the

Court's

Motion for

No.

206],

Defendants'

Plaintiffs' Reply [Dkt.
and for the reasons set

forth below, Plaintiffs' Motion shall be denied.

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I .

BACKGROUND

A brief

recitation of

the

facts

is

necessary

to

resolve

Plaintiffs' Motion. For a more detailed summary of the facts and
procedural history, see this Court's September 26, 2014 Memorandum
Opinion resolving the Cross-Motions for Summary Judgment [Dkt. No.
194] .
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

v.

Adair v.
Dep't

England,

of

Navy,

Civ.
Civ.

No.
No.

00-566
06-1696

·("Gibson"). 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 26,
April 28,

2006,

Plaintiffs'

2000

[Adair Dkt. No.

21]. On

counsel filed Gibson as a separate

putative class action in the Northern District of Florida,

and

that case was subsequently transferred to this District pursuant
to 28 U.S.C.

§

1404. See Mem. Order, dated August 17, 2006, at 1

[Gibson Dkt. No. 1].
On June 18, 2007, the Court consolidated all three actions,
concluding that they raise "substantially similar constitutional
challenges to the Navy Chaplaincy program." Mem. Order, dated June.
18, 2007, at 4

[Dkt. No. 11]. Between 2002 and 2009, the parties

conducted discovery,

interspersed with collateral litigation and
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three interlocutory appeals to the D.C.
request,

on October

3,

2012,

Circuit. At the Court's

Plaintiffs

filed

a

Consolidated

Complaint [Dkt. No. 134] comprised of all the claims at issue in
the consolidated case.
On September 26,

2014, the Court granted Defendants' Motion

for Partial Summary Judgment,

finding that many of Plaintiffs'

claims were time-barred. 1 See Memorandum Opinion on Motions for
Partial Summary Judgment

("Summary Judgment Opinion") [Dkt.

No.

194] . The Court also ordered the parties to submit a joint Notice
identifying the

remaining

claims

following

its Order.

Id.

The

parties submitted their Notice on October 24, 2014 [Dkt. No. 199]
and a Status Conference was held on November 5, 2014.
On November 19,

2014, Plaintiffs filed their present Motion

for Modification and/or Clarification [Dkt. No.
filed

their

Opposition

on

December

18,

2014

203]. Defendants
("Opp'n")

No. 208] ,

and Plaintiffs filed their Reply on January 12,

("Reply")

[Dkt.
2015

[Dkt. No. 212].

Specifically, the Court granted summary judgment to Defendants
on: "all CFGC claims based on policies or personnel actions
---fi.naI1 zea-pr ior ~Novem15er 5-,-r9-9-3;-ai-1-Aacrtr-c1.-a:.tm-s-rra:s-e-d-on
policies or personnel actions finalized prior to March 17, 1994;
and all Gibson claims based on policies or personnel actions
finalized prior to April 28, 2000." Order dated September 26, 2014
[Dkt. No. 193]
1

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...

II.

LEGAL STANDARD 2

Under Federal Rule of Civil Procedure 54 (b)
discretion

to

reconsider

justice requires

at

adjudicating

the

all

its

own

interlocutory

"any time before
claims

and

the Court has
decisions

entry of

a

the

parties'

rights

held

all

the

that

as

judgment
and

liabilities[,]" Fed. R. Civ. P. 54(b).
Our

Court

has

consistently

Rule

54(b)

reconsideration may be granted "as justice requires.# Cobell v.
Jewell, 802 F.3d 12, 25 (D.C. Cir. 2015); Judicial Watch v. Dep't
of Army,

466 F.

Supp.

2d 112,

123

(D.D.C.

2006).

Under the "as

justice requires" standard, a court may consider whether it "has
patently misunderstood a party,

has made a decision outside the

adversarial issues presented to the

[c]ourt by the parties, has

made an error not of reasoning, but of apprehension, or where a
controlling

or

significant

change

in

the

law

or

facts

[has

occurred] since the submission of the issue to the court." Judicial
Watch, 466 F. Supp. 2d at 123 (quoting Cobell v. Norton, 224 F.R.D.

2

Plaintiffs state in the first sentence of their Motion that they
also seek reconsideration under Fed. R. Civ. P. 59, but fail to
mention Rule 59 at any other point in their Motion or Reply. In
light of Plaintiffs' failure to pursue their Rule 59 argument and
because this Motion is more appropriately viewed as a Rule 54(b)
- ·--- ---Mori on, -Ene-Court: wi-1-1-1-i-m-1t-1c-s-arra-i-y-s-i-s--t-o-Ru-1-e-s-4-(-b-)-.--:rn-any-- ··
event, "courts have more flexibility in applying Rule 54(b) than
in determining whether reconsideration is appropriate under Rule
59(e) ." Cobell v. Jewell, 802 F.3d 12, 26 (D.C. Cir. 2015)
(internal quotation marks and citation omitted),
- 4 -

'·

266,

272

(D.D.C.

2004)).

"Errors of apprehension may include a

Court's failure to consider

'controlling decisions or data that

might reasonably be expected to alter the conclusion reached by
the court.'" Singh v. George Washington Univ., 383 F. Supp. 2d 99,
101 (D.D.C. 2005)

(quoting Shrader v. CSX Transp., Inc., 70 F.3d

255, 257 (2d Cir.1995)).
Ultimately,
determining

the

"whether

"as

justice requires"

reconsideration

is

standard amounts
necessary

under

to
the

relevant circumstances." Judicial Watch, 466 F. Supp. 2d at 123.
While the court has a great deal of discretion under 54(b), it is
limited by the law of the case doctrine and "subject to the caveat
that, where litigants have once battled for the court's decision,
they should neither be required, nor without good reason permitted,
to battle for it again."

Singh,

383 F.Supp.2d at 101

(internal

citations omitted).
III. ANALYSIS
The Court
Correctly
Jurisdictional

A.

Plaintiffs

argue

that

conclusion that 28 U.S.C.
permit

class

arguments

as

action
to

why

§

the

Court

Section

was

2401(a)

incorrect

To

in

Be

its

2401(a) is jurisdictional and does not

tolling.
the

Held

While

Court's

Plaintiffs

Summary Judgment

make

several

Opinion was

incorrect, they do not directly address why this Court is not bound
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by our Court of Appeals' decision in Mendoza v.
1002 (D.C. Cir. 2014).

Perez,

754 F.3d

3

As discussed in the Summary Judgment Opinion that Plaintiffs
ask the Court to reconsider,
that Section 2401(a)

our Court of Appeals has long held

is unlike a "normal statute of limitations"

because it "'creates a jurisdictional condition attached to the
government's waiver of sdvereign immunity" that "cannot be waived
by

the

parties"

and

is

not

subject

to

equitable

extensions.

Mendoza, 754 F.3d at 1018 (quoting P & V Enters. v. U.S. Army Corps
of Eng'rs, 516 F.3d 1021, 1026

(D.C. Cir. 2008)

Under this clear and controlling precedent,

(citing cases)).

the Court lacks any

authority to extend the limitations period for claims governed by
Section 2401(a).

Id.; see also John R. Sand & Gravel Co. v. United

States, 552 U.S. 130, 134 (2008)
statute

of

limitations

(observing that a "jurisdictional"

"forbid [s]

a

court

to

consider whether

certain equitable considerations warrant extending a limitations
period") .

Plaintiffs cite to Menominee Indian Tribe of Wisconsin v. United
States, 614 F.3d 523 (D.C. Cir. 2010) ("Menominee I") and Menominee
Indian Tribe of Wisconsin v. United States, 764 F.3d 51 (D.C. Cir.
2014) ("Menominee II"), but neither case is applicable, as they
------de-a-1-wtt_h_a_a-1f-f-ere-nt-statut-e-o-f-i-±mttattorrs--p1'.'0Vrs±-on-.-r;n-- ----- --addition, Mendoza was decided only a few months after Menominee
II; presumably the Court of Appeals was aware of its recent
decision in Menominee I I when it held that Section 2401 (a) is
jurisdictional.
3

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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
suits against private defendants.
(citing P

&

to

Mendoza, 754 F.3d at 1018 n.11

V Enters., 516 F.3d at 1027

&

473 F.3d 1255, 1260 (D.C. Cir. 2007)).
on the present Motion was complete,

n.2; Felter v. Kempthorne,

In addition, after briefing
the Supreme Court held that

the statute of limitations with respect to the Federal Tort Claims
Act in 28 U.S.C.

§

240l(b) was not jurisdictional because Congress

had "provided no clear statement indicating that
rare

statute

of

limitations

that

jurisdiction." United States v.

can

240l(b) is the

§

deprive

Kwai Fun Wong,

a

court

135 S. Ct.

of

1625,

1632 (2015).
However,
that

§

because our Court of Appeals has explicitly held

240l(a) is jurisdictional, and because the Supreme Court's

holding in Kwai

Fun Wong is

limited to

§

2401 (b),

this

Court

remains bound by Circuit precedent as it currently exists.
B.

The Court Correctly Denied
Limitations Period

Equitable

Tolling

of

the

Plaintrfl:s--argue that -D~~-Circui t preceaent------ariows Secc.fon-- - 240l(a)

to tolled, even if it is jurisdictional.
-

7 -

See Pls.' Mot.

at

5-8.

Plaintiffs

rely

exclusively on our

Court

of Appeals'

decision in Hohri v. United States, 782 F.2d 227 (D.C. Cir. 1986),
vacated and remanded on other grounds,
Hohri,

482 U.S.

64

(1987).

In

the Circuit Court held that fraudulent concealment will

toll Section 2401(a) 's six-year statute of limitations. Hohri, 782
F.2d at 247. The Circuit Court's opinion was vacated by the Supreme
Court on unrelated jurisdictional grounds. Hohri, 482 U.S. at 68.
Since

Hohri

was

vacated,

courts

in

this

circuit

have

continuously held that because Section 240l(a) is jurisdictional,
they lack the power to toll its limitation period. See W. Virginia
Highlands Conservancy v. Johnson, 540 F. Supp. 2d 125, 138 (D.D.C.
2008)

(Section 2401 (a)

has

been construed as

a

jurisdictional

statute of limitations and cannot be overcome by the application
of judicially recognized exceptions such as equitable tolling or
fraudulent

concealment) ;

Conservation Force v.

Supp. 2d 18, 27, 28 n.4 (D.D.C. 2011)
on other grounds,
1200, 1202

Salazar,

811 F.

(same), vacated and remanded

Conservation Force,

Inc.

v.

Jewell,

733 F.3d

(D.C. Cir. 2013); Appalachian Voices v. McCarthy, 989

F. Supp. 2d 30, 42-43 (D.D.C. 2013)

(same); see also John R. Sand

& Gravel Co. v. United States, 552 U.S. 130, 134 (2008)

(observing

that a "jurisdictional" statute of limitations "forbid[s] a court
to

consider

whether

certain

equitable

extending a limitations period").
- 8 -

considerations

warrant

Therefore,

the Court correctly denied Plaintiffs'

requests

for equitable tolling.
C.

Amending the Complaint

Plaintiffs request the opportunity to amend their Complaint
prior to dismissal of the time-barred chaplains. Pls.' Mot. at 11.
Plaintiffs contend that amendment of the Complaint "to further
specify and clarify their continued injury by successive failures
of selection

( "FOS")

and bias

in the Reserves"

will allow six

chaplains to continue as plaintiffs. Id.
Plaintiffs'

argument

is

unavailing.

The

Consolidated

Complaint was filed in October 2012 and is over 200 pages long,
including a 75 page appendix of very detailed information of the
claims for each plaintiff. Any claims Plaintiffs thought they had
should have been included in the Consolidated Complaint.
Plaintiffs argue that they did not include subsequent FOS by
various

boards

because

they

thought

it unnecessary under D. C.

Circuit law and the law of the case. Pls.' Mot. at 11. Necessary
or not, Plaintiffs made a conscious decision not to include all of
their claims in the Consolidated Complaint or to seek amendment at
an earlier date. Although Plaintiffs may regret their decision to
omit claims by these six plaintiffs now that their claims have
been dismissed,

that is not sufficient reason to permit them to

amend their Complaint to assert the previously omitted claims.
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Plaintiffs also contend that twelve chaplains should have
been permitted to join Adair v. England as additional plaintiffs
in 2002-03, and had they been permitted to do so, they would fall
within Adair's statute of limitations. Pls.' Mot. at 14. Plaintiffs
wish to file a motion "addressing the Court's failure to allow
additional plaintiffs to join in 2002-03," but at no point do they
state what the motion will consist of or what relief they will
seek. See Pls.' Mot at 14-15, 17; Pls.' Reply at 2-6.
Given Plaintiffs' lack of specificity for why the Court should
further

delay dismissing

the

twelve

chaplains

who

purportedly

sought to join the Adair case in 2002, the Court sees no reason to
withhold dismissal

of

those

plaintiffs

whose

claims are

time-

barred.
IV.

CONCLUSION

For

the

Modification

foregoing
and/or

reasons,

Clarification

Plaintiffs'
of

the

Court's

Motion

for

Decision

to

Dismiss Certain Plaintiffs under the Statute of Limitations shall
be denied.

An Order shall accompany this Memorandum Opinion.

February 9, 2016

GladySKeSer
United States District Judge

Copies to: attorneys on record via ECF

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