IN RE: NAVY CHAPLAINCY

Filing 239

MEMORANDUM OPINION to the Order granting in part and denying in part Defendants' Motion to Dismiss. Signed by Judge Gladys Kessler on 3/16/16. (CL)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

IN RE: NAVY CHAPLAINCY

)
)
)
)

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

~~~~~~~~~~~~~~~~>

MEMORANDUM OPINION

Table of Contents
I • Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. The Navy Chaplain Corps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. The Navy's Personnel System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. Plaintiffs' Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
D. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Standard of Review under Fed. R. Civ. P. 12(b) (1) .......... 9
B. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Mootness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
III. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. "As Applied" Challenges to Alleged Policies . . . . . . . . . . . . . . . 13
1. Faith Group Accession Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2. Staffing of CARE Boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3 . CARE Board Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 O
4. Former Alleged Recruiting Policy . . . . . . . . . . . . . . . . . . . . . . . . 21
5. Alleged use of Faith Group Categories . . . . . . . . . . . . . . . . . . . 23
6. Alleged Dual Systems of Discipline . . . . . . . . . . . . . . . . . . . . . . 23
7. SECNAVINST 1730. 7C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8. Alleged Policy of a General Protestant Service .......... 29
9. Alleged Policy of Reserving Key Billets . . . . . . . . . . . . . . . . . 31
10. Alleged Practices Concerning Recalls . . . . . . . . . . . . . . . . . . . 32
B.

"As Applied" Challenges to Conditions of Chaplain Corps ... 34

C. Challenges to Ad Hoc Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 7
1. Alleged Failure to Consider Prior Reports . . . . . . . . . . . . . . . 37
-

1

-

2. Alleged Interference with Ministries .................... 41
3. Alleged Interference with Prayer ........................ 43
D. Portions of Claims of Specific Plaintiffs ................. 45
1. Statute of Limitations .................................. 46
2. Exhaustion of Administrative Remedies ................... 48
IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Plaintiffs are current and former Non-liturgical Protestant
chaplains in the United States Navy, their endorsing agencies, and
a fellowship of non-denominational Christian evangelical churches.
They bring this consolidated action against the Department of the
Navy

and

several

Defendants

of

its

discriminated

officials.

Plaintiffs

allege

Non-liturgical

against

that

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 Defendants'
Dismiss

on

Defendants'

Jurisdictional
Motion

[Dkt.

No.

Grounds.
217],

Upon

Motion to

consideration

Plaintiffs'

Opposition

of

[Dkt.

No. 229], Defendants' Reply [Dkt. No. 235], and the entire record
herein,

and for the reasons set forth below,

Defendants' Motion

shall be granted in part and denied in part.
I .

BACKGROUND

Only a brief recitation of the facts

is necessary at this

time since the Court has familiarity with the extensive record in

- 2 -

the case,

which includes more than twenty written decisions by

Judge Ricardo Urbina when the case was assigned to him, by this
Court, and by the Court of Appeals.
A.

The Navy Chaplain Corps

The Navy employs a corps of chaplains
"CHC")

whose

mission

religion by members

is

to

of

provide

the Navy,

for

("Chaplain Corps" or
the

free

exercise

their dependents,

of

and other

authorized persons. In re England, 375 F.3d 1169, 1171 (D.C. Cir.
2004)

(citation omitted).

In accordance with this mission, Navy

chaplains provide religious education, counseling, and support to
sailors and Marines and advise commanders on religious, moral, and
ethical issues. Id.
There are over 100 faith groups recognized by the Department
of Defense,

which the Navy has grouped into four

categories"

( "FGCs")

consisting of:

"faith group

Roman Catholic,

Liturgical

Protestant, Non-liturgical Protestant, and Special Worship. In re
Navy

Chaplaincy,

Liturgical

Reformation,
it

that

liturgical

1173

(D.C.

consists

category
their

infant

includes

("Consol.

1171,

trace

practice

Presbyterian faiths.
Complaint

F.3d

Protestant

denominations

liturgy;

697

origins

baptism,

Lutheran,

and

to

Cir.

The

of

Protestant

the

Protestant

follow

Episcopal,

2012).

a

prescribed

Methodist,

and

In re England, 375 F.3d at 1172; Consolidated
Compl. 11

Protestant

)

,

6 (b)

category
- 3 -

is

[Dkt.

No.

composed

134] .
of

The NonProtestant

denominations that baptize at the "age of reason" and do not follow
a formal liturgy; it includes Baptist, Evangelical, Pentecostal,
Bible Church, and Charismatic faiths.
1172; Consol. Compl.

~

6(c).

In re England, 375 F.3d at

The Special Worship group includes

denominations not covered by the Protestant and Roman Catholic
categories; it includes Jewish, Hindu, Buddhist, Muslim, Jehovah's
Witness,

Christian

Science,

and

Mormon,

Unitarian

faiths.

Chaplaincy of Full Gospel Churches v. England, 454.F.3d 290, 295
n.3

~

(D.C. Cir. 2006); Consol. Compl.
B.

6 n.5.

The Navy's Personnel System

Chaplains enter the Navy through a civilian clergy program or
a theological student program.
"accession"
individual

refers
into

the

to

the

Consol.

process

Chaplain Corps

Compl.
of

as

~

44(c). The term

bringing
a

a

qualified

commissioned officer.

Thereafter, they are subject to the same personnel system as other
naval officers and must be selected for promotion in rank when the
needs of the service require.
(citing 10 U.S.C.

§

("FOS").

375 F. 3d at 1172

611(a)). If an officer is considered but not

selected for a promotion,
selection"

In re England,

he or she is said to have "failed of

Chaplaincy of Full Gospel Churches, 454 F.3d

at 293. After failing of selection on two or more occasions, an
officer is subject to involuntary separation, known as "selective
early retirement."

See 10 U.S.C.

§

632(a)-(b). However, the Navy

may elect to continue an officer on active duty despite two or
- 4 -

more failures of selection as its needs require. See 10 U.S.C.

§

632 (c) (2).
Each of these decisions regarding a naval officer's career promotion, selective early retirement, and continuation on active
duty - is made by a "selection board" composed of superior officers
who act pursuant to statute and regulations prescribed by the
Secretary of Defense. See 10 U.S.C.

c.

§§

611, 612.

Plaintiffs' Claims

Plaintiffs' Consolidated Complaint contains 18 Counts, many
of which contain various claims challenging current and historical
aspects of the CHC's personnel system. The following is a small
sampling of their claims.
First,

they

contend

that

the

faith

group

categories

recognized by the Navy are discriminatory and arbitrary.
Comp 1.

~~

33 - 38 .

In particular,

Consol.

they claim that the categories

reflect neither religious demographics nor legitimate similarities
or differences among the worship traditions represented.
Second, they allege that in the past (but not since at least
2002),

the

CHC

used

religious

quotas

opportunities among various faith groups.

to

apportion

Consol.

chaplain

Compl.

~~

33-

35. In particular, they allege that policies existed requiring one
or two Roman Catholic chaplains on selection boards, and that such
policies

were

designed

to

"stack"

selection board proceedings

against Non-liturgical candidates and in favor of Roman Catholic
- 5 -

and

Liturgical

Protestant

declining numbers

chaplains

despite

in the broader population.

their
Consol.

allegedly
Compl.

~~

57(e)-(g). Defendants deny that such policies ever existed.
Third,

Plaintiffs

personnel practices
believe

-

challenge

a

number

of

facially

both current and historical

have allowed religious

selection board

outcomes.

Plaintiffs claim that the practices,

taken together,

"enable[]

each

chaplains

to

to

that they

infect

board's

bias

-

neutral

ensure

that

a

particular

candidate will not be promoted, thus increasing the odds for their
preferred

(and discriminatory)

results."

In re Navy Chaplaincy,

738 F.3d 425, 428 (D.C. Cir. 2013).
Plaintiffs also challenge a practice, which they concede has
not existed since 2002, in which "each selection candidate's threedigit

'faith group

throughout

the

identifier'

code

was

selection board process."

prominently displayed
Consol.

Compl.

~

86.

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 prejudice for or against other chaplains or faith groups,
particularly against Non-liturgical chaplains." Id. ~ 87.
Fourth and finally,

Plaintiffs

seek relief

relating

to a

variety of specific instances in which they allegedly suffered
discrimination and free exercise harm while serving in the Chaplain
Corps.

See~'

Addendum 1 to Consol. Compl. ~~ 12, 37, 41. These
- 6 -

include occasions

in which Plaintiffs claim to have been:

(1)

retaliated against, criticized, and removed from their posts based
on

the

content

of

their

religious

teachings;

(2)

treated

differently from Liturgical chaplains with respect to disciplinary
issues

and

employment

Liturgical
that,

services;

while

not

benefits;
and/ or

facially

( 4)

(3)

required

subjected

discriminatory,

officiate

general

at

policies

disfavored

certain

See generally id. ~~ 1-65.

aspects of their worship traditions.

D.

to

to

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

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,

pretrial purposes on September 26,
April 28,

2006,

Plaintiffs'

and
2000

were

consolidated

[Adair Dkt. No.

counsel filed Gibson as a

for

21]. On
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 raised "substantially similar

- 7 -

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 three interlocutory
appeals to the D.C. Circuit. At this Court's request, on October
3, 2012, Plaintiffs filed a Consolidated Complaint [Dkt. No. 134]
comprised of all the claims at issue in the consolidated case.
On September 4,

2014,

this Court denied Plaintiffs'

Motion

for Class Certification [Dkt. No. 192], and on September 26, 2014,
granted Defendants' Motion for Partial Summary Judgment on their
statute of
request,
2014,

limitations defense

[Dkt.

No.

194] . At

the Court's

the parties filed a Joint Status Report on October 24,

listing the remaining claims as well as those Plaintiffs

whose claims should be dismissed in their entirety [Dkt. No. 199].
On November 19,

2014,

Modification

Clarification

or

Plaintiffs filed a Rule 54(b)
of

the

Court's

Motion for

Partial

Summary

Judgment opinion [Dkt. No. 203]. The Court denied Plaintiffs' Rule
54(b) Motion on February 9, 2016 [Dkt. No. 237].
On February 27, 2015, Defendants filed the present Motion to
Dismiss

on

Jurisdictional

Grounds

("Motion")

[Dkt.

No.

Plaintiffs filed their Opposition on August 3, 2015 ("Opp' n")
No.

229] ,

and Defendants filed their Reply on October 9,

("Reply") .

- 8 -

217].
[Dkt.
2015

II.

LEGAL STANDARD
A.

As

Standard of Review under Fed. R. Civ. P. 12(b} (1)

courts of

only those powers

limited jurisdiction,

federal

specifically granted to

courts possess

them by Congress or

directly by the U.S. Constitution. Kokkonen v. Guardian Life Ins.
Co.

of Am.,

511 U.S.

375,

377

(1994).

The plaintiff bears the

burden of establishing by a preponderance of the evidence that the
Court has subject matter jurisdiction to hear the case. See Shuler
v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008). In deciding
whether to grant a motion to dismiss for lack of jurisdiction under
Rule

12 (b) (1),

allegations

the

in

court

[the]

must

complaint

"accept
as

all

of

true [.]"

the

factual

Jerome

Stevens

Pharmaceuticals, Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54
(D.C. Cir. 2005)

(internal quotation marks omitted)

(citing United

States v. Gaubert, 499 U.S. 315, 327 (1991)). "[W]here necessary,
the court may consider the complaint supplemented by undisputed
facts evidenced in the record,

or the complaint supplemented by

undisputed facts plus the court's resolution of disputed facts."
See Herbert v. Nat'l Acad. Of Sciences,

974 F.2d 192,

197

(D.C.

Cir. 1992).
B.

Standing

Article III of the Constitution limits the jurisdiction of
federal courts to certain "Cases" and "Controversies." See U.S.
Const.

art.

3,

§

2.

" [N] o principle is more fundamental to the
- 9 -

judiciary' s

proper

role

in our

system of

government

than

the

constitutional limitation of federal-court jurisdiction to actual
cases or controversies." Clapper v. Amnesty Int'l USA, 133 S. Ct.
1138, 1146 (2013)
332,

341,

(2006)).

requirement
standing

(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S.

to

"One

is

plaintiffs

that

sue."

Id.

element

of

must

(internal

the

case-or-controversy

establish

that

quotation marks

they

have

and

citation

of

standing

omitted).
" [T] he

irreducible

constitutional

minimum

contains three elements. First, the plaintiff must have suffered
an injury in fact . . . which is (a) concrete and particularized,
and

(b)

actual

or

imminent,

not

conjectural

or hypothetical.

Second, there must be a causal connection between the injury and
the conduct complained of

Third,

it must be likely,

as

opposed to merely speculative, that the injury will be redressed
by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S.
555,

560-61

(1992)

(internal

quotation

marks,

citations,

and

footnote omitted) .
Plaintiffs

seeking

prospective

injunctive

or

declaratory

relief as to future acts must demonstrate that harm resulting from
such acts is "'actual or imminent, not conjectural or hypothetical
. Past exposure to illegal conduct does not in itself show
a present case or controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse effects.'" City
- 10 -

•.

of Los Angeles v. Lyons, 461 U.S. 95, 102-03 (1983)
v.

Littleton,

414 U.S.

488,

495-96

(1974)).

(quoting O'Shea

Past wrongs have a

bearing on whether there is a real and immediate threat of future
injury. Id.

c.

Mootness

"Simply stated, a case is moot when the issues presented are
no longer live or the parties lack a legally cognizable interest
in the outcome." County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979)

(quoting Powell v.

McCormack,

(internal quotation marks omitted).
premised

upon

the

constitutionally

notion

forbidden

395 U.S.

486,

496

The doctrine of mootness is
federal

court

that

to

(1969))

" [a]

render

advisory opinions

or

is
'to

decide questions that cannot affect the rights of litigants in the
case before them.'
F.2d 86,

90-91

" Better Gov't Assoc. v. Dep't of State,

(D.C. Cir. 1986)

780

(quoting North Carolina v. Rice,

404 U.S. 244, 246 (1971)).
A defendant's voluntary cessation of a challenged practice
moots a case only if the defendant shows that "(1)

there is no

reasonable expectation that the alleged violation will recur and
(2)

'interim relief

or events

have

completely and

irrevocably

eradicated the effects of the alleged violation.'" Reeve Aleutian
Airways, Inc. v. United States, 889 F.2d 1139, 1142-43 (D.C. Cir.
1989))

(quoting County of Los Angeles,

440 U.S.

at 631).

This

burden "is a heavy one." Reeve Aleutian Airways, 889 F.2d at 1143.
- 11 -

III. ANALYSIS

Defendants address their challenges to Plaintiffs' remaining
claims in three categories, each of which mirror the categories in
the

Parties'

Joint

Status

Report

Identifying Remaining
2014

[Dkt.

filed with the

Court on October 14,

categories are:

(1) Plaintiffs' "as applied" challenges to alleged

Chaplain Corps personnel policies or practices;

No.

Claims

(2)

199].

The

Plaintiffs'

"as applied"

challenges to alleged conditions of hostility and

bias

Chaplain Corps;

in the

and

(3)

Plaintiffs'

challenges to

alleged ad hoc actions against certain Plaintiffs. Mot. at 3. The
Court will address each category in turn.
As an initial matter,
Churches

("CFGC")

Plaintiff Chaplaincy of Full Gospel

did not respond to Defendants' Motion and has

therefore conceded these arguments.

See F.D.I.C. v. Bender,

127

F.3d 58, 67 (D.C. Cir. 1997). CFGC's counsel, who is also counsel
for AGC and

the

individual

Plaintiffs,

moved

appearance as counsel for CFGC on March 19, 2015

to withdraw his
[Dkt. No. 220],

and this Court granted the motion the following day.

See Order

Granting Motion to Withdraw [Dkt. No. 221]. No other counsel has
been entered on behalf of CFGC. Therefore, Defendants' Motion to
Dismiss is granted with regard to CFGC's claims.

- 12 -

..
A.

"As Applied" Challenges to Alleged Personnel Policies or
Practices

Plaintiffs challenge several of the Navy's alleged policies
or

practices

relating

to

accession,

personnel

management,

promotions, and career transition. The Navy has not, at this time,
moved to dismiss policies relating to aspects of the promotion and
early retirement selection board process, but seeks dismissal of
other claims for lack of standing and mootness,

as well as for

being time-barred. Mot. at 7-8.
1.

Faith Group Accession Goals

As mentioned previously, accession refers to the process by
which an individual becomes a member of the Chaplain Corps.
accession

process

swearing-in to

includes

the military service."

Opp' n

allege that from 1986 until 2001 or 2002,
so-called "Thirds

processing [,]

recruitment,

at

34.

"The
and

Plaintiffs

the Navy maintained a

Policy" 1 under which it

reserved thirty-five

percent of chaplain accessions for Liturgical Protestants, thirtyfive percent for "Non-liturgical faith groups," and thirty percent
for

"Others,"

which included Catholics.

Mot.

at 35-36;

Consol.

Compl. ,, 33, 35.

The Court dismissed Plaintiffs' claim regarding the Thirds Policy
for lack of subject matter jurisdiction in 2014. See In re Navy
Chapiaincy, No. 7-269, 2014 WL 4378781, at *6-9 (D.D.C. Sept. 4,
2014) .

1

- 13 -

While Defendants dispute that such a policy ever existed,
they

argue

that

since

2001,

"the

Navy

has

accessed

chaplain

candidates on a best-qualified basis, without any consideration of
religious affiliation." Mot. at 8. Plaintiffs deny that the Navy's
current practice is faith neutral. Opp'n at 37. Plaintiffs contend
that the Navy's accession policy is unconstitutional because any
faith group or denominational goals are not based on the Navy's
"free exercise needs"
service

members),

preferences."
Plaintiffs,

(the denominational make-up of the Navy's
resulting

Consol.

Compl.

~~

in

arbitrary

68-70.

"denominational

Therefore,

according to

"[t]he accession system is not narrowly tailored to

achieve the CHC's constitutional purpose and is nothing more than
a federal jobs program for clergy." Id.

~

70.

First, Defendants argue that every individual Plaintiff has
successfully accessed into the CHC,
Plaintiff has

and therefore not a single

suffered an injury due

policy. Without an injury,
the alleged policy.

Mot.

to the

alleged accession

there cannot be standing to challenge
at 9.

Plaintiffs do not deny that the

individual Plaintiffs were not harmed directly by the policy. See
Opp' n

at

41.

Rather,

Plaintiffs

argue

that

"the

CHC' s

denominational preference produces twin messages of preference and
prejudice" and argue that the policies are "part of the culture of
prejudice." Id.

- 14 -

This argument does not suffice to show injury or standing.
Plaintiffs do not show how the alleged messages of preference and
prejudice cause injury that is "(a) concrete and particularized,
and

(b)

actual

or

imminent,

not

conjectural or hypothetical."

Lujan, 504 U.S. at 560-61. Plaintiffs' allegation of a culture of
prejudice and bias is a separate claim and will be analyzed later
in this Opinion. See infra, Section III.B.
Second, Defendants argue that the organizational Plaintiffs
CFGC and Association of Gospel Churches ( "AGC") fail to demonstrate
standing,

either

on

their

own

behalf

or

in

a

representative

capacity. See Mot. at 11-15. An organization may have standing to
bring

a

cause

of

referred to as

action

on either

its

own behalf

"organizational standing")

(sometimes

or on behalf of

its

members ("associational standing"). Warth v. Seldin, 422 U.S. 490,
511

(1975);

People for the Ethical Treatment of Animals v. U.S.

Dep't of Agric., 797 F.3d 1087, 1099 (D.C. Cir. 2015).
For an organization to have standing on its own behalf,

it

must meet the standard requirements of injury-in-fact, causation,
and redressability. Havens Realty Corp. v. Coleman, 455 U.S. 363,
379

(1982).

In

other

organization itself has
outcome

of

the

federal-court

words,

the

"alleged such a

controversy as

jurisdiction."

citations omitted).

Court

Id.

must

ask

whether

the

personal stake in the

to warrant
(internal

[its]

invocation of

quotation marks and

"A conflict between the defendant's conduct
- 15 -

and

the

organization's

standing;

the

objectives

organization

must

is

not

allege

enough
that

to

establish

discrete

and

programmatic concerns are directly [a]ffected by the defendant's
conduct." CFGC, No. 99-2945, Memorandum Opinion at 8 [Dkt. No. 30]
(citing Nat'l Treasury Emp. Union v. United States, 101 F.3d 1423
(D.C.

Cir.

1996).

The

asserted

injury must

be

"concrete

and

demonstrable," rather than "simply a setback to the organization's
abstract social interests." Havens Realty Corp., 455 U.S. at 379.
AGC asserts that it has standing because CHC's "policies and
practices which reject AGC candidates
promotions

.

.)

(and also impact

[]

AGC

impair and in fact preclude AGC's ability to

represent its member churches to the military, causing injury to
AGC."

Opp'n at

churches

to

the

39.

"AGC's mission is

military

by

seeking

to represent
and

endorsing

its member
qualified

candidates to the chaplaincy and supporting them in their continued
representation once they are on active duty or in the reserves."
Opp'n at 38-39.
In 2000,

Judge June Green ruled in CFGC

(which was later

consolidated with Adair and Gibson to form the present case) that
CFGC did not have standing on its own behalf. CFGC Mem. Op at 10.
CFGC had characterized its primary function as the sponsorship of
clergy.

Id.

resources

to

CFGC also
minimize

discrimination,

claimed that
the

becoming a

effects

it had to
of

the

"divert sizable

Defendants'

alleged

counselor and employment agency for
- 16 -

CFGC Navy chaplains." Id.

at 9.

The Court found that providing

such assistance to the chaplains was tangential to CFGC's primary
function and that Defendants' alleged discriminatory activity was
"not

at

'loggerheads'

with

the

group's

mission."

Id.

at

10.

Therefore, the Court concluded that CFGC had not suffered injury
in fact. Id.
Plaintiffs have not shown how AGC is different from CFGC, nor
have they explained why this Court's prior holding is not also
applicable to AGC. AGC's only attempt to distinguish itself from
CFGC is its claim that CFGC did not name specific candidates who
were rejected, while AGC has. Opp'n at 40. This distinction does
not

touch

on

the

core

dispute:

whether

programmatic concerns are directly
discrimination.
identification

CFGC
of

Mem.

specific

Op.

AGC' s

"discrete

[a] ffected by"
at

members

who

CHC' s alleged
AGC's

Consequently,

8.

were

and

rejected

is

more

appropriately considered in the associational standing analysis.
For these reasons, the Court finds that AGC does not have standing
to sue on its own behalf.
An organization has associational standing when:

"(1)

'its

members would otherwise have standing to sue in their own right;'
(2)

'the

interests

it

seeks

organization's purpose;' and (3)
the

relief

requested

requires

members in the lawsuit.'" Ctr.

to

protect

are

germane

to

the

'neither the claim asserted nor
the

participation of

individual

for Sustainable Econ. v. Jewell,

- 17 -

779 F.3d 588,

596

(D.C.

Cir.

2015)

(quoting Hunt v. Wash. State

Apple Adver. Comm'n, 432 U.S. 333, 343

(1977)). Defendants argue

that CFGC and AGC fail to satisfy the first and third prongs.
Defendants contend that AGC has failed to identify "at least
one specifically-identified member" who has suffered an injuryin-fact. Mot. at 14
of

Transportation,

response,

(quoting American Chemistry Council v. Dep't
468

F.3d 810,

820-21

(D.C.

Cir.

2007)).

In

Plaintiffs submit the Declaration of Captain Steven D.

Brown, the current President of AGC ("Brown Deel.") , Dkt. No. 22716, who identifies several individuals that AGC endorsed but were
rejected

by

CHC.

See

e.g.,

Brown Deel.

~

11

(discussing

the

unsuccessful applications of Isaac Toliver and James Block) .
Although Plaintiffs have identified certain individuals who
were unsuccessful in their applications to join the Chaplain Corps,
at no point does the Brown Declaration or the Opposition allege
that the individuals were unsuccessful as a result of the alleged
faith group accession policies that are at issue. Therefore, while
Plaintiffs have shown that the individuals they identify may have
suffered an injury, they have not alleged causation sufficient for
the Court to find that the individuals would have standing in their
own right. AGC fails to satisfy the first prong of associational
standing. 2

2

Because the Court finds that AGC lacks associational standing
due to the first prong of the test -- "its members would otherwise
- 18 -

For the aforementioned reasons, the Court holds that neither
the individual Plaintiffs nor the organizational Plaintiffs have
standing to challenge the Navy's faith group accession goals.
2.

Staffing of CARE Boards

Count 2 of the Consolidated Complaint alleges that the Navy
had

"an

unconstitutional

religious

hierarchy

and

preference

system" which it implemented through denominational and FGC goals.
Consol. Compl.

~~

Navy

set

used

"a

40-63. One sub-allegation of Count 2 is that the
of

favored

denominations

for

its

[Chaplain

Appointment Recall and Eligibility ("CARE")] Board memberships who
tended to approve those most like themselves and reject or limit
those not like themselves." Id.
Insofar as

the~

~

44(g).

44(g) claim is limited to the period of the

alleged Thirds Policy,

Defendants argue this claim is moot and

should also be dismissed for lack of standing. Mot. at 16. Should
the scope of the claim be construed to apply post-2001, Defendants
also argue that it should be dismissed for lack of standing, as
neither

the

individual

Plaintiffs

nor

the

organizations

have

have standing to sue in their own right" -- it need not reach the
third prong - - "neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit."
The Court does note, however, that Plaintiffs' only response to
Defendants' challenge relative to the third prong was to summarily
state that"' [n]either the claim asserted nor the relief requested
requires the participation' of either AGC candidates or chaplains
in this lawsuit." Opp' n at 41. By failing to address the substance
of Defendants' contentions, Plaintiffs have conceded Defendants'
argument that AGC fails to satisfy the third prong.
- 19 -

standing.

Id.

Plaintiffs fail to reply to either of Defendants'

mootness or standing arguments, and have therefore conceded them.
with~

Accordingly, the claim associated
3.

44(g) is dismissed.

CARE Board Procedures

Counts 3 and 4 of the Consolidated Complaint challenge, inter
alia, the procedures employed by the CARE Boards. Consol. Compl.
~~

71,

81-84.

These

procedures

allegedly

"grant

unlimited

discretionary power to chaplains with no accountability and no
effective guarantees

[that]

the power will be used for neutral,

secular and non-ideological purposes."

Id.

~

82.

To the extent

this claim is applicable to the time period of the alleged Thirds
Policy,
lack

Defendants argue that the claim fails for mootness and

of

standing,

Defendants

argue

and

it

to

fails

the
for

extent
lack of

it

applies

standing.

post-2001,

Mot.

at

1 7.

Defendants' lack of standing argument mirrors its prior arguments
in Sections A.l and A.2,
any

injury

and

namely that individual plaintiffs lack

organizational

plaintiffs

lack

direct

or

representational standing. Id.
Plaintiffs fail to respond to Defendants' arguments and the
Court finds that they have been conceded.

Therefore,

the Court

dismisses Plaintiffs' claim regarding CARE Board policies found in
Counts 3 and 4.

- 20 -

4.

Former Alleged Recruiting Policy

Count 15 of the Consolidated Complaint challenges an alleged
recruiting policy under which chaplains were required to speak
positively about the Chaplain Corps. See Consol. Compl.
1 7.

Plaintiffs allege

that

the policy was

directives issued in 2001.
policy as a

~

Id.

212.

~~

207-

implemented via two

Plaintiffs refer to the

"former policy" and discuss it in the past tense,

although Plaintiffs do not state when the policy ceased to be in
effect. Id.
policy

~~

was

207-217. Plaintiffs allege that the purpose of the
to

"maintain

disproportionate

chaplain

constitutes

the

endorsement

Establishment

an

Clause,"

Plaintiffs' speech. Id.

imbalance

which

of

religion

in

and
~~

current

addition,

irrational
plaintiffs
forbidden
that

it

and
allege

by

the

censored

213(b), 216.

Defendants argue that Plaintiffs have failed to identify a
single plaintiff who has ever been affected or injured by the
alleged policy, or how this Court could redress such an injury,
and that as a result, Plaintiffs lack standing. Mot. at 18-19. In
response, Plaintiffs fail to identify any specific Plaintiffs who
were harmed by the

al.leged policy.

Instead,

Plaintiffs argue,

without citation, that "[i]t is Black Letter Law a plaintiff need
not wait until he is injured to challenge a policy unconstitutional
on its face." Opp'n at 42. This is directly contrary to Supreme
Court

precedent

stating

that

"the

- 21 -

irreducible

constitutional

minimum of

standing contains

three

element is an "injury in fact
particularized,
hypothetical."

and

(b)

Lujan,

elements,"
. which is

actual or imminent,
504

U.S.

at

560-61

where
(a)

the

first

concrete and

not conjectural or
(internal

quotation

marks, citations, and footnote omitted).
Plaintiffs also posit that if any "CHC policy violates the
Establishment Clause and a plaintiff is subject to that policy,
their Establishment Clause rights have been violated," Opp' n at
42, apparently suggesting that injury is automatic if a plaintiff
is subject to an allegedly unconstitutional policy.

Plaintiffs

rely on Chaplaincy of Full Gospel Churches v. England ("CFGC") in
support of this theory.

454 F.3d 290,

304

(D.C.

Cir.

2006).

In

that case though, our Court of Appeals was discussing irreparable
injury

for

standing.

purposes

Indeed,

of

preliminary

injunction

analysis,

the Court of Appeals commented in a

not

footnote

. that the party has standing

that the "conclusion presupposes

to allege such a violation." Id. at 304 n.8.
Plaintiffs have failed to identify any plaintiffs who were
injured by this alleged policy and to identify any injuries that
were suffered. In addition, Plaintiffs have failed to respond to
Defendants'
not

have

redressability argument.

standing

to

challenge

the

Accordingly,
alleged

Plaintiffs do

recruiting

policy

requiring chaplains to speak positively of the Chaplain Corps and
their claim is dismissed for lack of jurisdiction.
- 22 -

5.

In

Alleged Use of Faith Group Categories in Personnel
Management and Staffing Decisions

Count

1

of

the

Consolidated

Complaint,

Plaintiffs

challenge the Navy's categorization of Faith Group Categories.
Plaintiffs allege that the parameters of the FGCs,
Roman Catholic
Liturgical

FGC has

in which the

only one denomination while

Protestant"

FGC

contains

a

wide

the

spectrum

denominations, are arbitrary and capricious. Consol. Compl.
The

classification

allegedly

facilitates

toward some groups and "hides the CHC' s
liturgical faith groups
groups)

in

"Non-

religious

of

~ 36.

favoritism

bias against the Non-

(and other conservative liturgical faith

accessions,

promotions,

assignments, and retentions." Id.

~

opportunities,

career

37.

Defendants argue that Plaintiffs have not shown that they
have standing to challenge the FGCs because they have demonstrated
neither injury nor redressability. Mot. at 20. Plaintiffs respond
that the Court has jurisdiction over the challenge, but fail to
explain

why,

omitting

any

discussion

of

standing,

injury,

or

redressability. Plaintiffs have again conceded this argument and
the

Court

finds

that

they

lack

standing

to

challenge

the

categorization and use of FGCs.
6.

Alleged
Dual
Administration

Systems

of

Discipline

and

Count 7 of the Consolidated Complaint alleges that the Navy
has created an unconstitutional culture of hostility toward Non-

- 23 -

liturgical chaplains. Consol. Compl.

~~

141-152. In furtherance of

that culture, Plaintiffs allege that the Navy has established two
systems of discipline: one for Liturgical traditions and a second,
harsher system for Non-liturgical traditions.
Consolidated

Complaint,

Plaintiffs

provide

~

Id.
three

148.

In the

examples

of

individual Plaintiffs who were harmed by the alleged dual systems
of discipline.

Id.

~

148(a)-(c)

(discussing claims of plaintiffs

Thompson, Tostenson, and Klappert) .
Defendants argue that the claims of the three Plaintiffs who
have alleged harm under the dual-disciplinary systems are timebarred,

and that Plaintiffs also lack standing.

This Court has

previously held that the six-year statute of limitations of 28

u.s.c.

§

2401(a)

is applicable in this case and has asked the

parties to submit a list of individuals whose claims, as a result,
are time-barred. See In re Navy Chaplaincy, F. Supp. 3d 249 (D.D.C.
2014)

(Memorandum Opinion granting Defendants' Motion for Partial

Summary Judgment) .
On

October

24,

2014,

the

Parties

submitted

a

list

of

individual Plaintiffs whose claims should be dismissed. See Dkt.
No. 199. Plaintiffs Thompson and Tostenson, who were part of the
Gibson case filed in 2006, were on that list, and Plaintiffs have
offered no argument that their claims are not time-barred. While
Plaintiff Klappert was not included on that list, all activities
relating to him that are alleged in the Consolidated Complaint
- 24 -

appear to have occurred before April 28,

2000,

limitations cut-off for the Gibson plaintiffs.

the statute of
Defendants argue

that Klappert's dual-disciplinary-systems claim is therefore timebarred, and Plaintiffs do not dispute it.
In their Opposition, Plaintiffs mention four other individual
Plaintiffs who allegedly suffered harm under the dual-disciplinary
system.

Opp'n at

Complaint

43-44.

suggests

that

However,
these

nothing

Plaintiffs

in

the

ever

Consolidated

encountered the

Navy's disciplinary system nor do Plaintiffs specify any injuryin-fact suffered by these individuals.

Id. at 44. The only harm

discussed is that Liturgical and Catholic chaplains, who had been
disciplined

in

the

past

for

reasons

unrelated

to

Plaintiffs,

retaliated against Plaintiffs due to their religion. Id. Such harm
flows from retaliation, not the Navy's disciplinary system.
In sum, there are no remaining Plaintiffs who claim to have
been

injured under

claims

of

the

Consolidated
Plaintiffs

the

three

Complaint

have

fai'led

alleged dual-disciplinary
individual
are
to

Plaintiffs

time-barred,
allege

any

systems.

mentioned
and

injury

the
for

in

The
the

remaining

purposes

of

standing. In addition, Defendants argue that Plaintiffs have not
satisfied the causation and redressability prongs of standing, and
Plaintiffs failed to respond to this argument in their Opposition,
thereby

conceding

it.

See

Mot.

- 25 -

at

23-24;

Opp'n

at

43-44.

Plaintiffs' claims regarding an unconstitutional dual-disciplinary
system are dismissed.
7.

SECNAVINST 1730.7C

Count 9 of the Consolidated Complaint alleges that Secretary
of the Navy Instruction 1730.7C ("SECNAVINST 1730.7C"), which was
issued on February 21,

2006,

"unconstitutionally established a

Navy religion by defining acceptable and unacceptable religious
words and concepts for chaplains to speak at ceremonies or other
public

events."

Consol.

Compl.

~

167.

SECNAVINST

1730. 7C was

rescinded and replaced by SECNAVINST 1730.7B in August 2006, and
SECNAVINST

1730.7B

has

since

been

superseded

by

SECNAVINST 1730.7D. See Mot. at 25.
Defendants argue that no remaining Plaintiffs claim to have
been

injured

by

SECNAVINST

1730.7C,

and

therefore

none

have

standing to challenge it. Id. In addition, Defendants argue that
any claims for prospective relief are moot, as the policy has not
been in effect for almost ten years. Id.
In response to the Navy's argument,
numerous

individual

Plaintiffs,

including

Plaintiffs state that
chaplains

De

Marco,

Rush, Stewart, Thyrion, and Wilder, have reported "being penalized
by the CHC's underlying hostility to Plaintiffs' religious speech
which 1730.7C formalized

as

an official policy."

Opp'n at 45.

Because the Parties have already agreed that Thyrion's claims are
time-barred,

the Court need not consider them here.
- 26 -

See Joint

Status

Report

Identifying

Remaining

Claims

and

Individual

Plaintiffs Whose Claims Should Be Dismissed at 5 [Dkt. No. 199).
Plaintiffs' opposition suffers from a logical flaw:
SECNAVINST 1730. 7C

supported this

Even if

hostility toward Plaintiffs'

religious speech, it does not logically follow that therefore all
harm suffered as a result of hostility toward religious speech was
also a

result of SECNAVINST 1 73 O. 7C.

Contentions that the Navy

interfered with the above named chaplains'

religious speech are

not sufficient to show injury as a result of SECNAVINST 1730.7C.
Plaintiffs have not stated that any of the chaplains were harmed
by SECNAVINST 1730.7C, and indeed the facts suggest that most of
them had already separated from the Navy at the time of SECNAVINST
1730.7C's implementation. See e.g., Consol. Compl., Addendum 1 ~
49 (Rush joined Air Force Reserve in 1996); Id. ~ 61 (Wilder nonselected in 1999 and 2000 and was forced to retire due to failure
of selections); Id.

~

10 (suggesting De Marco retired in or around

1998) .
AGC also challenges,
failure

"on behalf of its chaplains, the Navy's

to provide effective guarantees the policy will not be

reinstituted." Opp'n at 45. AGC fails to show that it has standing
in its own right or that its members have standing so as to provide
a foundation for representational standing.
Plaintiffs also state that the Navy has failed to meet the
criteria for the voluntary cessation doctrine, but do not explain
- 27 -

how or why. Voluntary cessation of a challenged practice moots a
case only if

(1)

"there is no reasonable expectation .

the alleged violation will

recur,"

and

( 2)

. that

"interim relief or

events have completely and irrevocably eradicated the effects· of
the alleged violation." Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C.
Cir. 2008)

(quoting Los Angeles County v. Davis, 440 U.S. 625, 631

(1979)).
Plaintiffs do not allege that the Navy is even likely to
consider reinstatement of SECNAVINST 1730.7C. "[T]he mere power to
reenact a challenged [policy]

is not a sufficient basis on which

a court can conclude that a reasonable expectation of recurrence
exists.

Rather,

challenged
added)

there

[policy]

must

likely

be
will

evidence
be

indicating

reenacted."

Id.

that

the

(emphasis

(quoting Nat'l Black Police Ass'n v. District of Columbia,

108 F.3d 346,

349

(D.C. Cir. 1997)). Plaintiffs have offered no

such evidence.
With regard to the second prong of the test, Plaintiffs have
alleged no ongoing effects of SECNAVINST 1730.7C. AGC challenges
the Navy's failure to provide a guarantee that the policy will not
be reinstated, but an injunction or order by this Court declaring
SECNAVINST 1730.7C illegal "would accomplish nothing--amounting to
exactly the type of advisory opinion Article III prohibits." Id.
Larsen prohibits such an advisory declaration.

- 28 -

\~.

For

the

foregoing

reasons,

the

Court

concludes

that

Plaintiffs lack standing to challenge SECNAVINST 1730.7C and also
finds the Plaintiffs' SECNAVINST 1730.7C claims to be moot.
8.

Alleged Policy
Service"

Requiring

a

"General

Protestant

Count 10 of the Consolidated Complaint alleges that "the Navy
has historically tried to establish[]
'high church'

a de facto liturgical or

'General Protestant' religion," in violation of the

First Amendment of the United States Constitution. Consol. Compl.
~

173.

Plaintiffs allege that the Navy had a policy mandating

liturgical "General Protestant" services, to the detriment of Nonliturgical personnel. Id.
Defendants argue that this claim fails for lack of standing.
Mot. at 26-30. In addition, Defendants also argue that the factual
allegations fail to suggest that a policy existed,

and instead

reflect situation-specific decisions by Navy command. Id. 26-27.
Plaintiffs do not contend that the Navy promulgated an official
policy. Instead, they allege that the facts,
indicative of a de facto policy.

Consol.

taken together, are

Compl.

~

173. Whether

such an unofficial policy exists is an issue of fact. In a motion
to dismiss, the Court must "accept all of the factual allegations
in

[the]

complaint as

true [.] "

Jerome Stevens Pharmaceuticals,

Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005)

- 29 -

(internal

quotation

marks

omitted)

(citing

United

States

v.

Gaubert, 499 U.S. 315, 327 (1991)).
Defendants state that no Plaintiff alleges any actual injury
attributable to the alleged policy, and therefore Plaintiffs lack
standing. Id. at 27. Plaintiffs state that the injury occurs when
a chaplain is forced to conduct a service contrary to his theology,
in violation of the First Amendment. Opp'n at 45. Plaintiffs also
provide

examples of

consequences,

one

two chaplains

as

a

result

of

who
his

suffered adverse
refusal

to

career

perform

a

Liturgical service and the other as a result of "his emphasis on
Christ.

/1

Id. at 45-46. Defendants do not deny the injuries as such,

but focus on their contention that no policy existed. The Court
finds that Plaintiffs have sufficiently establishing an injury for
purposes of standing. 3
Defendants

also

argue

that

Plaintiffs

have

not

shown

redressability for this claim. Specifically, Defendants state that
Plaintiffs allege

"no adverse action that might conceivably be

redressed through an award of remedial relief,
basis

for prospective

command-specific

relief

nature.

/1

on these

Mot.

at

and there is no

allegations

29-30.

The

given their

latter

half

of

Defendants state that the specific incidents underlying the
claims of three of the Plaintiffs - Belt, Wilder, and Bailey occurred outside of the applicable limitations period. Mot. at 29.
Plaintiffs do not refute it and have therefore conceded this
argument. Accordingly, the Count 10 claims of Plaintiffs Belt,
Wilder, and Bailey are dismissed.
3

- 30 -

Defendants' argument relies on a finding that the alleged actions
are command-specific, rather than indicative of Navy policy, which
is a factual finding ill-suited for a motion to dismiss.
Despite
provide

the

the

weakness

of

Defendants'

Court with no guidance as

argument,

to what

Plaintiffs

relief,

either

prospective or remedial, could address their claim. The entirety
of

Plaintiffs'

redressability response

is

that

the

"Court can

provide a remedy to those injured by their Liturgical superiors or
the CHC' s

indifference."

Opp' n at

46.

Such an assertion lacks

specificity and is too general to establish redressability.

For

the foregoing reasons, the Court finds that, although Plaintiffs
have shown an injury-in-fact, they have not shown redressability
and therefore do not have standing to challenge the alleged policy
requiring a Protestant service.
9.

Alleged Policy of Reserving Key Billets for other
Faith Group Categories

Count 2 of the Consolidated Complaint contains several subclaims, including the claim that the Navy had a policy and practice
of reserving "key" billets - defined by Plaintiffs as the 15 key
decision-making positions - for Protestant and Catholic chaplains.
Consol. Compl.

~~

54-63; see also Capt. Larry Ellis Memorandum to

Chief of Chaplains,

January 25,

1995

135-14] .

.., 31 -

("Ellis Report")

[Dkt. No.

Defendants argue that Plaintiffs have provided no evidence
supporting the existence of a policy. Mot. at 30. Defendants also
argue that this claim fails for lack of standing, as Plaintiffs
have

shown

neither

injury-in-fact

nor

redressability.

Id.

Plaintiffs have not identified any chaplains who were eligible for
the

key billets but were denied the positions,

explained how the

Court

nor have

they

could provide prospective or remedial

relief. Id. at 33-34.
Plaintiffs
arguments,

failed

and

have

to

respond

therefore

to

Defendants'

conceded

them.

standing

Accordingly,

Plaintiffs' claim challenging an alleged Navy policy reserving key
billets for certain faith groups is dismissed for lack of standing.
10.

Count

5

Alleged Practices Concerning the Recall of Certain
Chaplains

challenges

the

Navy's

alleged

policy

giving

preference to Catholics and Liturgical chaplains when selecting
Navy Reserve chaplains for recall. Consol. Compl.
also

id.

~~

46,

101

(similar claims

~~

123-31; see

interspersed in Counts

2

and 4). Defendants deny that such a policy or pattern ever existed,
noting that Plaintiffs identify only four such recalls. Mot. at
35. Defendants also contend that Plaintiffs have not shown injury
as a result of the recalls or the recall policy,
shown redressability.

- 32 -

nor have they

\

Defendants

state

that

none

of

the

remaining

forty-one

Plaintiffs have alleged that he or she has suffered harm from the
recall of a Roman Catholic or Liturgical chaplain from Reserve
duty. Id. at 36. To the extent that Plaintiffs might allege that
the harm results from a message of preference, Defendants argue
that our Court of Appeals' decision in 2008 has foreclosed such an
argument.
(D.C.

Id. at 37

Cir.

message,

2008)).

(citing In re Navy Chaplaincy,
In

that

case,

the

Court

534 F.3d 756

held that

such a

unaccompanied by actual employment discrimination,

was

insufficient to satisfy the injury-in-fact element of standing. In
re Navy Chaplaincy, 534 F.3d at 760, 762-65.
Plaintiffs respond that Defendants' act of "admitting there
was some impact

admits there was an injury.

/1

Opp' n at 47.

Plaintiffs provide no citation for the proposition that impact is
akin to injury.

The test for standing requires an injury,

not

merely an impact. See Lujan, 504 U.S. at 560-61. Plaintiffs argue
that there is no de minimis exception to the Establishment Clause,
see id, at 46, but Defendants are not arguing that the injury is
de minimis - they are arguing that there is no injury at all.
Plaintiffs point to Commander Lyle, a Catholic, as an example
of an illegal recall, stating that his recall has affected numerous
promotion opportunities since 2001 and has been "a barrier to being
able to compete for the legally available authorizations.
at 47.

Even so,

Plaintiffs fail to identify a
- 33 -

/1

Id.

single plaintiff

whose promotion or recall opportunities were affected by Commander
Lyle's recall.

Plaintiffs point to recalled Captains Vieira

(a

Liturgical Protestant) and Rock (a Catholic) as "notorious career
destroyers," but do not allege harm stemming from their recall,
let alone which Plaintiffs were harmed. Id. That Vieira and Rock
allegedly used their command positions to harm Plaintiffs does not
mean that the very act of recalling Vieira and Rock caused injury.
In addition to their injury argument, Defendants argue that
Plaintiffs have failed to show how this Court could redress any
injury they might have suffered. Plaintiffs' only response is that
this Court "can devise a remedy to make Plaintiffs affected by
Recalls whole." Opp'n at 47. As previously discussed, such cursory
statements

are

Accordingly,

not

sufficient

to

establish

redressability.

the Court finds that Plaintiffs have not satisfied

the injury-in-fact or redressability prongs of standing.
B.

"As Applied" Challenges to Conditions of the Chaplain
Corps.

Counts 7 and 8 of the Consolidated Complaint allege that the
Navy has a culture of bias and hostility toward Non-liturgical
chaplains. 4 Consol. Compl.
Defendants

allege

that

~~

141-52 (Count 7), 153-64 (Count 8).

these

counts

4

are

broad,

vague,

and

Defendants addressed the alleged culture of bias and the alleged
culture of hostility claims separately, but Plaintiffs responded
to the claims jointly. Given the similarity of the claims,
Defendants' arguments, and Plaintiffs' opposition, the Court will
address them jointly as well.
- 34 -

conclusory,

and

are

not

occurrence" - -or even a

limited

to

a

single

"transaction

or

set of transactions and occurrences- -as

required by Federal Rule of Civil Procedure lO(b). Mot. at 38. As
a result of the Counts' conclusory nature and Plaintiffs' failure
to allege discrete actions or policies, Defendants also argue that
Plaintiffs'

allegations

do

not

satisfy

the

injury-in-fact

and

redressability requirements of standing. Id.
The thrust of Defendants' argument is that no Plaintiff can
establish that he or she sustained any injury as a result of the
alleged culture of bias and hostility, rather than as a result of
a

more

specific

Defendants

action

contend

that

or
a

policy.

Id.

chaplain

who

39-40.
was

For

example,

non-selected

for

promotion would not be injured by an alleged culture of bias, but
by the decision of the selection board. And a chaplain who suffered
retaliation by a supervisor would not be injured by a culture of
hostility, but by the actions of the supervisor. Id. at 40.
Plaintiffs respond by outlining instances of alleged harms
against

plaintiffs

persecution

and

and other
oppression

individuals,

such as:

from

Buchmiller"

CAPT

"religious
against

chaplains, congregants, civilian volunteers, and chapel workers;
a "racially biased, career ending fitness report" against a nonPlaintif f individual; the allegation that Captain Young "destroyed
the careers of all evangelicals while unabashedly promoting and
advancing his fellow Catholic chaplains at the expense of
- 35 -

[four

Plaintiffs]"; and instances of retaliation. See Opp' n at 51-52.
While

these

instances

of

alleged

harm,

if

true,

might

be

problematic, Plaintiffs fail to show how and what harms stem from
the Navy's "culture." In other words, Plaintiffs do not identify
injuries-in-fact that are a

result of the amorphous

"culture,"

rather than specific actions.
Plaintiffs also fail to specify what remedies the Court could
provide to any injuries resulting from the alleged cultures of
bias

and

hostility.

Defendants

argue

that

an

injunction

prohibiting the continuation of a culture of bias or a declaratory
judgment finding such a culture to be unconstitutional would be
too vague and ill-defined to provide a remedy.
Plaintiffs'

Mot.

at 40,

43.

only responses are two general statements that "[a]

court can remedy Plaintiffs [']

injuries and harms,

and protect

AGC's future chaplains from such abuse," Opp'n at 53, and that the
"Complaint describes Plaintiffs' injuries by this culture and the
court can provide a remedy." Opp'n at 55. Such responses offer no
specificity or detail as to the remedies Plaintiffs seek and fail
to substantively respond to Defendants' argument.
The absence of a

causal relationship between the injuries

alleged and the alleged culture of bias and hostility, as well as
the

failure

to

identify a

redress Plaintiffs'

single potential

injuries,

remedy

that

would

leads the Court to conclude that

- 36 -

Plaintiffs have

failed

to establish standing to challenge the

alleged cultures of bias and hostility.
C.

Challenges to Ad Hoc Actions Against Certain Plaintiffs

The

final

consists

of

Plaintiffs.

category

claims

of

claims

alleging

Defendants

ad

argue

that

hoc

that

Defendants

actions
certain

jurisdictional reasons including untimeliness,

challenge

against
claims

certain

fail

for

lack of standing,

and mootness. Mot. at 43.
1.

Count

Alleged Failure to Consider Prior Officer Fitness
Reports

4

of

the

Consolidated

Complaint

alleges

that

many

aspects of chaplain selection board systems violate the First and
Fifth Amendments, as well as the Religious Freedom Restoration Act
("RFRA"),
Section

42 U.S.C.
of

D

discrimination

§

2000bb et seq.

Count 4

Consol.

discusses

in chaplain promotions,

Compl.

~~

73-103.

of

religious

including a

claim that

evidence

promotion board results show a distinct bias and hostility toward
Non-liturgical chaplains with prior military service. Id.
Several

Plaintiffs

~

102.

served in the military prior to being

commissioned as chaplains, and as a result, have fitness reports
that predate their tenure as chaplains. See, e.g., Addendum 1
(claims of James Weibling).
promotion

boards

failed

Plaintiffs'
to

consider

~

60

allegation is that the
fitness

reports

from

Plaintiffs' military service before they became chaplains. Consol.

- 37 -

Compl.

~

102.

Defendants argue that Plaintiffs lack standing to

bring this claim because they neglect to allege an injury under
the Constitution or RFRA.
The Complaint does not allege that Non-liturgical chaplains
were

treated

differently

than

other

chaplains

with

regard

to

consideration of prior fitness reports. Mot. at 44; Consol. Compl.
~

102. According to Plaintiffs' Opposition, 27 Plaintiffs did not

have prior fitness reports considered, which "lays out a disparate
impact claim for the Non-liturgical chaplains and provides the
basis

for

[Count

4's]

Establishment

and

Due

Process

claims

concerning the challenged selection board policies and results."
Opp'n at 55. Plaintiffs fail to identify which individuals' prior
fitness reports were not considered and what the resulting injury
was.
Defendants argue that,

of the Plaintiffs who allege prior

commissioned service, only two

(Rush and Cason) allege any facts

that would suggest they were injured by a failure to consider their
prior fitness reports. Mot. at 45. Plaintiffs do not dispute that
no Plaintiffs other than Rush and Carson allege any supporting
facts, with the sole exception of Plaintiff Weibling. Opp'n at 5556.
Plaintiff Carson alleges only that the Navy turned

~her

prior

military service into a detriment and liability," which Defendants
argue is too conclusory to be credited as true.
- 38 -

Mot.

at 45-46

•.

(citing Addendum A

~

9).

In addition to being conclusory,

allegation that her prior service was a
contrary

to

Plaintiffs'

other

"liability"

allegations--that

the

suggests- -

her

fitness

reports were in fact considered.
Similarly,
considered

his

Plaintiff
prior

elaboration. Addendum

Weibling

service

A~

a

alleges
liability

that
without

the

Navy

further

60. In their Opposition, Plaintiffs state

that Weibling "was told his small number of CHC fitness reports
was a reason for his non-selection," but provide no citation or
support for this allegation. Opp'n at 56. The Court agrees that
Carson and Weibling's claims are too vague and conclusory to find
an injury-in-fact.
Plaintiff Rush alleges that the Navy "counted his prior line
officer service to place him before the chaplain promotion board,
then disregarded his fitness reports as a line officer .
Because the other chaplains had more reports as chaplains, he was
non-competitive for promotion." Addendum A

~

49. Unlike Weibling

and Carson, Rush's allegation is detailed and supports Plaintiffs'
claim that prior fitness

reports were not considered.

However,

there is no information identifying the source of the information
that Rush's prior fitness reports were disregarded.
As evidence of disparate treatment,

Plaintiffs point to the

1997 Memorandum for the Chief of Naval Personnel from Captain J.N.
Stafford ("Stafford Report"), Dkt. No. 132-19. The Stafford Report
- 39 -

examined the failure to promote Lieutenant Commander Aufderheide
(who is not a plaintiff) and concludes that the failure to promote
was a result of a discriminatory evaluation by the FY-97 and FY-98
Selection Boards.

Id. The Stafford Report includes a Performance

Assessment chart listing the total number of "B" and "C" grades
received by the selectees from both Selection Boards and Lieutenant
Commander Aufderheide.
Two individuals on the Performance Asse.ssment chart have 30
"B"

grades--Liturgical

chaplains

H.

Griffith

and

Alan

Baker.

Plaintiffs allege, without any citation, that such a large number
of grades was not possible in Griffith and Baker's time with the
Chaplain Corps alone. Opp'n at 56.

Plaintiffs imply that prior

fitness reports for Baker and Griffith must have been considered
in order for them to have 30 Bs,

otherwise they would have had

less.
Plaintiffs provide no evidence regarding how long Griffith
and Baker were with the Chaplain Corps and do not explain how they
reached the conclusion that 30 Bs were not possible based on their
tenure with the Chaplain Corps alone. While it is true that most
individuals listed on the Performance Assessment Chart have well
under 30 grades and that those individuals with 30 or more grades
are outliers, without more information or evidence,

it is purely

speculative to conclude that this is due to the inclusion of prior
fitness reports.
- 40 -

Even taking as true Rush's allegation that his prior fitness
reports were not considered,

Plaintiffs still have not provided

sufficient evidence that the prior fitness reports of Catholic and
Liturgical chaplains were considered, and therefore have not shown
a disparate impact. Plaintiffs' conclusion that the prior fitness
reports of Griffith and Baker were considered is unsupported. Even
if they were considered, Plaintiffs' own pleadings that the prior
service of Carson and Weibling was detrimental to their promotion
prospects suggests that their prior service was in fact considered.
Finally,

Defendants

limitations period,

argue

that

Rush's

claim

is

outside

the

as he was considered for promotion in 1993,

well before the April 28, 2000 cutoff for Adair claims. Plaintiffs
did not respond to this argument and thus, have conceded it.
For all the foregoing reasons, the Court finds that Plaintiffs
have failed to establish an injury-in-fact caused by disparate
consideration
standing.

of

prior

In addition,

fitness

reports

and

therefore

lack

the Court finds Plaintiff Rush's claim to

be time-barred.
2.

Counts

Alleged Interference
Ministries

7

and

10

interspersed throughout
Plaintiffs

that

the

of
them,
Navy

the

with

Certain

Consolidated

allegations
interfered

of

with

Plaintiffs'

Complaint
several
their

have,

remaining
respective

ministries, in violation of the Establishment, Free Exercise, Free

- 41 -

Speech, and Due Process clauses of the Constitution. Consol. Compl.
~~

150-52, 162, 174-76. Defendants argue that many of these claims

are time-barred and that

Plaintiffs lack standing because they

cannot show injury or redressability. Mot. at 47.
The claims of Plaintiffs Belt and Wilder (Adair) and Plaintiff
Bailey (Gibson) are time-barred, Defendants argue, as they accrued
before their respective March 17, 1994, and April 28,

2000, cut-

offs. Id. at 48. Plaintiffs do not argue otherwise and therefore
the

Court

dismisses

the

claims

of

these

three

plaintiffs

for

interference with their ministries.
For the remaining Plaintiffs, Defendants argue that they have
shown no injury attributable to the alleged interference with their
respective ministries, or how the Court could remedy any injuries.
Mot. at 48. Defendants argue that the remaining Plaintiffs' claims
either do not allege an injury or are too conclusory to establish
standing. Mot. at 48-49.
The Court agrees that Plaintiffs DeMarco and Gordy make no
allegation
~~

of

interference

with

their

ministries,

Addendum

A

10, 18, and that Plaintiff Dufour's statement that his "command

chaplain undermined [his] ministry and career," id.

~

13, is too

conclusory to support standing. While Plaintiff Stewart says that
he was told he was "not liturgical enough," he does not state that
this interfered with his ministry. Id.

- 42 -

~

52. In their Opposition,

Plaintiffs do not identify any additional injuries or elaborate on
Plaintiffs' claims. See Opp'n 56-57.
Plaintiffs have failed to identify any Plaintiff who claims
an injury as a result of interference with his or her ministry and
whose

claim

is

not

time-barred.

Accordingly,

Plaintiffs

have

failed to establish standing to bring this claim.
3.

Alleged Interference with Prayer

Count 9 of the Consolidated Complaint claims that the Navy
discriminates against Non-liturgical chaplains by interfering with
their free speech rights and interfering with their form of prayer.
Consol.

Compl.

~~

165-71.

The Consolidated Complaint identifies

six Plaintiffs by name who were allegedly harmed by interference
with their prayers. The claims of two of these Plaintiffs, Johnston
and Thyrion,

have already been determined to be time-barred in

their entirety. Mot. at 50 n. 23.
With respect

to the

four remaining Plaintiffs,

Defendants

argue that none of their "allegations of interference suggest the
injury-in-fact

or

potential

redress

necessary

to

bring

the

particular claims based on such allegations within the Court's
subject-matter jurisdiction." Mot. at 50. Plaintiffs Belt, Rush,
and Torralva fail to allege any interference whatsoever with their
prayer. Addendum A

~~

4, 49, 54.

Plaintiff DeMarco alleges that he was criticized for ending
his prayers "in Jesus name." Id.

-

43

~

10. When he continued to pray

-

"in accordance with his beliefs and religious tradition . . . the
Liturgical command chaplain rated him in a way that made him noncompetitive for promotion." Id. In DeMarco's deposition testimony,
he stated that, after the fitness report rating him, but prior to
being

considered

for

promotion,

he

submitted

a

request

for

retirement that was approved. See Deposition of Gregory DeMarco,
Exhibit I, 116-18 [Dkt. No. 217-9]

("DeMarco Dep."). The fact that

he retired prior to consideration of his promotion is evidence,
Defendants argue, that any criticism of his prayer could not have
affected his promotion or his career. Mot. at 51.
Defendants'
need not affect

argument overlooks the fact that the criticism
his

promotion to be

injurious

to his

career.

Indeed, DeMarco states that because he thought the fitness reports
would prevent him from being promoted and that his career was
effectively over, he was motivated to retire. DeMarco Dep. at 11819.
Plaintiff Stewart,
(interference with his

discussed above in relation to Count 10
ministry) ,

while

regarding interference with his prayer,

not

named

in Count

9

does allege that he was

reprimanded for praying "in Jesus' name" and that after concluding
a prayer with "I pray in the name of my Lord and my Savior," he
was relieved of his duties. Addendum A

~

52. The allegations of

Plaintiffs DeMarco and Stewart are sufficient to show injury as a
result of interference with prayer.
- 44 -

Defendants
Plaintiffs'
that

also

injuries,

argument.

question

the

Court's

ability

to

redress

but provide no explanation or support for

See Mot.

at

50.

In turn,

Plaintiffs

failed to

respond to it in their Opposition. See Opp'n at 57-58. Given the
paucity of Defendants' argument, the Court is not willing to find
the argument conceded.
The

Consolidated

Complaint

contains

several

examples

of

potential remedies for the alleged injuries Plaintiffs suffered as
a result of interference with their prayers: a Declaration by the
Court that the Navy discriminates against Plaintiffs' free speech;
an

injunction

procedures

requiring

protecting

the

Navy

chaplains'

to

establish

free

speech;

policies
and

and

specific

remedies to address damage to individual careers. Consol. Compl.
at 115. It is not readily apparent, nor have Defendants provided
any

reasons,

why

the

Court

would

find

these

remedies

to

be

inadequate or unfeasible.
For the foregoing reasons,
have

the Court finds that Plaintiffs

sufficiently alleged injury-in-fact and redressability to

support standing.
D.

Portions of Claims of Specific Plaintiffs

Lastly,
Plaintiffs

Defendants

argue

that

the

claims

of

specific

should be partially or entirely dismissed as

time-

barred or for failure to exhaust administrative remedies. Mot. at
51-21.
- 45 -

1.

Statute of Limitations
a.

Adair Plaintiff Rush

Adair Plaintiff Rush's claims are based on non-selections by
selection boards convened in 1992 and 1993. Mot.

at 53

(citing

Mot. Ex. J, Declaration of David Lanham,

2015

("Lanham

Deel.")

~

18

[Dkt.

No.

217-10]).

Feb. 25,

Defendants argue that both of

these non-selections fall outside of the Adair limitations-period
cut-off

of

March 17,

1994.

Plaintiffs

counter that

Rush

"was

discharged on the basis of his failure of selection within the
[statute of limitations]." Opp'n at 60. Plaintiffs do not identify
when precisely Rush was discharged, making it difficult to verify
that

his

claim

is

within

the

statute

of

limitations.

The

Consolidated Complaint states that Rush was non-selected in 1994,
but it does not say when in 1994.

Due to the fact that Plaintiffs

have not shown that Rush's claims are within the Adair statute of
limitations

period,

Rush's

non-selection

for

promotion

to

Lieutenant Commander claims are dismissed.
b.

Defendants

Gibson Plaintiffs Deroy,
Garner,
Johnson,
Jones, Lancaster, Marsh, and Mitchell

argue

that

Plaintiffs'

challenges

to

selection

boards up to and including FY 2000 are time-barred because the
boards' decisions were issued prior to the Gibson limitations cutoff of April 28, 2000. See Mot. at 55-59. The selection boards for
FY 2000 met and issued their decisions in 1999. The earliest nontime-barred

selection boards

would
- 46 -

therefore

be

for

FY

2001.

Plaintiffs did not respond to this argument and have therefore
conceded it.
Plaintiff Demy was non-selected for promotion by the FY 2000
A~

through 2009 Captain boards See Addendum
His

challenge

to

the

FY

2000

~

6; Lanham Deel.

selection

board

is

5.

dismissed.

Plaintiff Garner was non-selected for promotion by the FY 2000
through 2003 Lieutenant Commander boards.
Lanham Deel.

~

See Addendum A

~

16;

7. His challenge to the FY 2000 selection board is

dismissed. Plaintiff Johnson was non-selected for promotion by the
FY 2000 through 2005 Captain boards. See Addendum A
Deel.

~

9.

His

challenge

to

the

FY

2000

~

24; Lanham

selection board

is

dismissed. Plaintiff Jones was non-selected for promotion by the
FY 2000 through 2007 Commander boards. See Addendum
Deel.

~

10.

His

challenge

to

the

FY

2000

A~

26; Lanham

selection board is

dismissed. Plaintiff Lancaster was non-selected for promotion by
the FY 1998 through 2002 Captain boards.
Lanham Deel.
boards

are

promotion
Addendum

by

A~

~

See Addendum A

~

32;

11. His challenges to the FY 1998-2000 selection

dismissed.
the

FY

Plaintiff
1996

37; Lanham Deel.

through
~

Marsh
2004

was

non-selected

Commander

boards.

for
See

13. His challenges to the FY 1996-

2000 selection boards are dismissed. Plaintiff Mitchell was nonselected

for

promotion by the

boards. See Addendum

A~

FY 2000

39; Lanham Deel.

through
~

Commander

14. His challenges to

the FY 1996-2000 selection boards are dismissed.
- 47 -

2002

2.

Exhaustion of Administrative Remedies

Defendants argue that the Court lacks jurisdiction over the
non-selection for promotion claims of numerous Plaintiffs because
Plaintiffs

failed to exhaust their administrative remedies.

As

discussed in Section I. B. , chaplains must be selected for promotion
in rank when the needs of the service require, and if they fail to
select two or more times, they may be subject to selective early
retirement. 10 U.S.C. §§ 611(a), 632. If a person is considered by
a selection board but is not selected for promotion, he or she may
challenge

the

decision of

the

administrative review scheme.
the Navy is authorized under

selection board pursuant

10 U.S.C.
§

§ 628.

to an

The Secretary of

628 to convene a special selection

board ("SSB") if the Secretary determines "that there was material
unfairness with respect to that person." 10 U.S.C.
the

Secretary

determines

an

SSB

is

§

warranted,

628(b) (1). If
the

SSB

then

considers the record of the person "as that record, if corrected,
would
§

have

appeared

to

the

board

that

considered

him."

Id.

628 (b) (2).
On December 28,

2001,

a

revised version of

§

628

became

effective. As revised, a person must exhaust his or her remedies
as set forth in

§

628(g)

and

(h)

before a court of the United

States may consider a claim "based to any extent on the failure of
a person to be selected for promotion by a promotion board." 10

u.s.c.

§

628 (h).

- 48 -

Defendants

argue

that

628's

§

exhaustion

requirement

is

jurisdictional, and that any challenge to a decision by a promotion
board made after December 28, 2001, must be dismissed for lack of
subject matter jurisdiction because Plaintiffs did not exhaust
their administrative remedies. Mot.

at 52.

Indeed,

Judge Urbina

has already ruled as much in this very case. See Memorandum Opinion
on Motions to Alter or Amend and Motion for Partial Dismissal
("Partial Dismissal Mem.
jurisdiction

to

Op.") ,

[Dkt.

No.

113]

by

the

promotion boards

review decisions

("a court lacks
and

special selection boards if a plaintiff fails to exhaust his or
her administrative remedies under [10 U.S.C.]

§

1558 and

§

628").

The Sixth Circuit reached the same conclusion in Harkness v. United
States,

where

it

found

the

exhaustion

requirement

to

be

jurisdictional. 727 F.3d 465, 469-72 (6th Cir. 2013).
Plaintiffs counter that Judge Urbina has

twice previously

rejected Defendants' arguments to dismiss their non-selection for
promotion

claims.

jurisdictional,

Plaintiffs

do

not

dispute

that

§

628(h)

is

but rather argue that their claims continue to

fall within the statutory exception, as previously determined in
this

case.

Opp'n

58-60

(citing

Memorandum

Opinion

Denying

Preliminary Injunction ("Prelim. Injunction Mero. Op.") at 8 [Dkt.
No.

108]).

"[U]nder

§

1558(g)

and

§

628(i),

a

court

retains

jurisdiction to review the actions by a selection or promotion
board so long as the claim seeks judicial review of the 'validity
- 49 -

of any law, regulation, or policy relating to selection boards.'"
Partial Dismissal Mem. Op.

at 24

u.s.c.

(quoting 10

§§

1558 (g),

628(i)).
In his first

decision addressing this

issue,

Judge Urbina

held that Plaintiffs' challenges to "the policies used by the Navy
to determine the composition and decision-making of the promotion
boards" fell within the

§

628 (i) exception, and therefore the Court

had jurisdiction to review the claims. Prelim. Injunction Mem. Op.
at 8.

In the second decision on this issue,

that Counts One,

Two,

Judge Urbina found

and Three of the Gibson Amended Complaint

[6-cv-2102, Dkt. No. 13] challenged the validity of "policies used
by the Navy to determine the composition and guide the decisionmaking" of selection boards,
its

jurisdiction

over

the

and therefore the Court maintained
claims

pursuant

to

the

statutory

exception. Partial Dismissal Mem. Op. at 25-26.
Since the time of Judge Urbina's decisions, the case has been
reassigned to the undersigned Judge and Plaintiffs have filed their
Consolidated Complaint, which is now the operative complaint for
the three combined cases. While Judge Urbina's reasoning in the
above decisions is still the law of the case,

it is not readily

apparent that the claims Defendants seek to have dismissed are the
same as those claims the Court previously found to be within the
statutory exception. Plaintiffs state that the promotion policies

- 50 -

challenged

previously

are

the

same

ones

currently

being

challenged, see Opp'n at 59.
Defendants' Motion lays out the specific factual allegations
of particular Plaintiffs in detail.
resolution

of

each

Plaintiff's

Defendants then argue that
claims

does

not

require

consideration of selection board policies and therefore the Court
does not have jurisdiction over their claims. Mot. at 53-54. For
example, Plaintiff Looby claims his non-selection was attributable
to an unfounded rumor that he "had been injured on active duty,
was

ineligible

Addendum A
for

~35.

promotion

discrimination.

for

promotion

and

had

performance

problems,"

Plaintiff Roman alleges that he was not selected
because
Id.

~

he
4 7.

had

sued

the

Navy

over

He also alleges that his

religious
failure to

select was due to "the animosity of the CHC leadership against his
endorsing agency,

CFGC,

and the ability of one board member to

ruin a chaplain's career with no accountability." Id.
While Defendants are correct that adjudication of Plaintiffs'
non-selection claims on these facts alone would not require the
Court to consider the validity of any selection board policies,
these facts are not the only non-selection allegations Plaintiffs
have made.

Plaintiffs have also alleged that several selection

board policies and systems are unconstitutional,

and that these

policies are common to all Plaintiffs. See e.g.,

Consol. Compl.

Count 4

(size, staffing, and voting system of selection boards).
- 51 -

The fact that individual Plaintiffs have alleged additional facts
and

theories

for

their

non-selections

does

not

negate

for

promotion

their

challenges to the policies.
Since

Plaintiffs'

non-selection

claims

challenge policies relating to selection boards and therefore fall
within the exception to the exhaustion of administrative remedies
requirement,

see 10 U.S.C.

§

628 (h),

(i),

Defendants' Motion to

Dismiss Plaintiffs' non-selection for promotion claims for failure
to exhaust and lack of jurisdiction shall be denied.
IV.

CONCLUSION

For
shall

be

the

foregoing

granted

reasons,

in part

Defendants'

and denied

accompany this Memorandum Opinion.

March 16, 2016

Copies to: attorneys on record via ECF

- 52 -

Motion

in part.

to Dismiss

An Order

shall