Alex v. Mabus
Filing
48
MEMORANDUM OPINION: Considering all of the foregoing factors, the Court will defer to the Navy's decision and uphold the cease and desist letter. Accordingly, defendant's motions will be granted and this civil action will be dismissed by an Order to accompany this Memorandum Opinion.Signed by District Judge Leonie M. Brinkema on 6/20/12. (yguy)
I
1
p-l
JIM 2 0 MI2
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
CHRISTOPHER D.
CIERK, U.S OtSiRir.7 CO'KIT
AITXAr-'PRiA, vrriGlN'IA
ALEX,
Plaintiff,
I:llcvl207 (LMB/IDD)
RAY MABUS,
Secretary, Department
of the Navy Agency,
Defendant.
MEMORANDUM OPINION
Before the Court is defendant Secretary of the Navy Ray
Mabus' Motion to Dismiss in Part and for Judgment on the
Pleadings in Part [Dkt. Nos. 26 & 27].
For the reasons
discussed below, defendant's motions will be granted and this
civil action will be dismissed.
I.
BACKGROUND
Plaintiff Christopher Alex is an at-will truck driver
employed by Doss Aviation, a contractor for the United States
Navy, and is stationed at Naval Support Activity Souda Bay ("NSA
Souda Bay"), on the island of Crete, Greece.
EEO Report at 4.1
Plaintiff filed an EEO complaint on October 26, 2009, alleging
that the Navy had discriminated against him based on his Greek
Orthodox religion and that his First Amendment rights were
violated. The EEOC dismissed his complaint because Alex was not
an employee of the Navy and affirmed this decision on appeal and
upon Alex's request for reconsideration.
»
!
Plaintiff has resided in the city of Xania2 since 2003 and has
worked for Doss Aviation since June 1, 2005.
Status Report at 1 [Dkt. No. 44].
Id. ; PL's Sealed
Upon his arrival in Crete,
plaintiff, who practices Greek Orthodox Christianity,
volunteered for Fronditha (Helps) Christian Ministries, which at
the time served the poor, many of whom were foreigners, out of a
building in Xania.
EEO Report at 4; PL's Status Report at 3
[Dkt. No. 43]; PL's Sealed Status Report at 1.
Beginning in
the spring of 2009, plaintiff and his family commenced the
activity at issue in this lawsuit, the operation of a ministry
in a public Xania square.
The group hands out "clothes, food
and bibles to any person who desires to receive them," and, more
recently, plays and sings music as well.
EEO Report at 4; see
also Mem. Supp. Def.'s Mot. Dismiss in Part & for J. on
Pleadings in Part ("Def.'s Mem.") Ex. 1 (Letter to J. Sullivan,
S.D.N.Y.) (parties are in agreement that Alex's public religious
activities involved "feedfing] and cloth[ing] the poor and the
homeless, spiritual music, public spiritual encouragement and
exhortation, and finally giving out the New Testament to those
who want one in their language").
According to plaintiff, the
Plaintiff's complaint does not itself include substantial
factual allegations, but it references and attaches the EEO
Counselor's Report dated November 6, 2009 (ttEEO Report").
The spelling of the city's name varies between "Chania" and
"Xania."
ministry has received "overwhelming positive responses" from the
local community.
PL's Opp'n at 3 [Dkt. No. 30].
On May 19, 2009, plaintiff received a telephone call from
John Kennedy, his supervisor at Doss Aviation.
Kennedy informed
plaintiff that, per the request of NSA Souda Bay, plaintiff
should discontinue his ministry activities.
EEO Report at 4.
Plaintiff responded that "his off duty activities are not the
business of Doss Aviation or NSA Souda Bay."
Id. at 5.
The
next day, plaintiff participated in a meeting with Kennedy and
Christopher Engels, Command Master Chief at NSA Souda Bay.
id.
Plaintiff again stated that his off-duty activities "should not
be the concern of his employer."
Id.
The meeting apparently
became heated, as Engels allegedly stated that he would "not
have my sailors coerced into breaking the law by anybody," to
which plaintiff responded that he was the person being harassed.
According to plaintiff, NSA Souda Bay contacted Doss Aviation in
an attempt to end plaintiff's activities.
Id.
On May 22, 2009, plaintiff received a cease and desist
letter from Captain T. J. McDonough, Jr., the commanding officer
of NSA Souda Bay.
The letter stated in part:
1. I have been informed that you have engaged in
religious activities consistent with proselytizing
in Chania.
Greek Law specifically prohibits these
activities. As a member of the United States Forces
in Greece, your activities have violated bilateral
agreements between the United States and Greece, and
these activities jeopardize host nation
and may affect the United States mission.
relations
2. This command is committed to supporting religious
activities for United States forces; however, we
must comply with applicable law. Before engaging in
off-base, public religious activities, you must
consult with LT Steven Gonzales,
Staff Judge
Advocate,
or
LT
Harry Hansen,
Chaplain,
at
harry.hansen@eu.navy.mil.
3. This letter is an order directing you not to engage
in
any
public
activities
consistent
with
proselytizing,
or
that
may
appear
to
be
proselytizing, within the Greek territory.
Failure
to
comply
with
this
order
may
result
in
administrative
Moreover,
and/or
disciplinary
action.
a violation of this order may result in
prosecution under United States Law.
Soon after receiving the cease and desist letter, plaintiff
visited Lieutenant Gonzales "to express his concerns about the
letter," and stated that his group was not proselytizing.
Report at 5.
EEO
Lieutenant Gonzales reemphasized that off-base
activity must be pre-approved.
Despite the events underlying
this lawsuit, and the cease and desist letter in particular,
plaintiff has continued with his ministry since 2010.
PL's
Opp'n at 3.
Plaintiff filed this civil action against Secretary of the
Navy Ray Mabus ("the Navy") in the United States District Court
for the Southern District of New York, alleging a violation of
his First Amendment rights.3 The action was subsequently
3
Plaintiff originally brought claims for religious
discrimination under Title VII of the Civil Rights Act of 1964
transferred to this district.
After hearing oral argument, the
Court deferred ruling on defendants' motions to dismiss and for
judgment on the pleadings and ordered the parties to engage in
limited discovery on two matters: (1) whether, since May 22,
2009, other persons associated with the United States military
at Naval Support Activity Souda Bay, Greece have participated in
plaintiff's ministry or other similar public religious
activities and, if so, the Navy's response to such activities;
and (2) the manner in which the term "proselytism" has been
defined and interpreted under Greek and European Union law.
This Memorandum Opinion incorporates the results of that
discovery.
II.
DISCUSSION
A. Standard of Review
1. Fed. R. Civ. P. 12(b)(6) and 12(c)
In considering a motion under Rule 12(b)(6) or Rule 12(c),
the Court must assume that the allegations in the non-moving
party's pleadings are true.
472, 474 (4th Cir. 1997).
Ibarra v. United States, 120 F.3d
However, that requirement applies
and for a violation of his First Amendment rights, and sought
$5,000 to reimburse a Greek attorney who prepared a legal brief
on his behalf.
Agreeing with the EEOC that he is not an employee of the Navy,
plaintiff has since abandoned his Title VII claim as well as his
request for attorneys' fees, and the Court has dismissed these
counts. As this litigation has progressed, plaintiff now
contends that his rights under Greek and European Union law have
also been violated.
only to facts, not to legal conclusions.
Ashcroft v. Iqbal,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In addition, "if
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged-but it has not *show[n]'-that the pleader is entitled to
relief."
Id_^ at 679.
"Factual allegations must be enough to
raise a right of relief above the speculative level, on the
assumption that all of the allegations in the complaint are
true."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Accordingly, a party must "nudge[] their claims across the line
from conceivable to plausible" to survive a Rule 12(b)(6) motion
to dismiss.
Id. at 570.
A motion for judgment on the pleadings under Rule 12(c)
differs from Rule 12(b)(6) only as to timing.
The former is
filed "after the pleadings are closed" whereas the latter may be
filed in response to a complaint.
Zhang v. Rolls-Royce,
Seaworthy Sys., No. I:llcv942, 2012 U.S. Dist. LEXIS 933, at *8
(E.D. Va. Jan. 5, 2012).
When deciding a Rule 12(c) motion for
judgment on the pleadings, courts apply the same standard used
to evaluate a motion to dismiss pursuant to Rule 12(b)(6).
Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 405-06
(4th Cir. 2002).
Accordingly, "[jJudgment should be entered
when the pleadings, construing the facts in the light most
favorable to the non-moving party," indicate that the dispute
"can ... be decided as a matter of law."
O'Ryan v. Dehler
Mfg. Co., 99 F. Supp. 2d 714, 718 (E.D. Va. 2000).
2. Summary Judgment
"The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Civ. P. 56(a).
Fed. R.
A genuine dispute of material fact exists "if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party."
Inc., 477 U.S. 242, 248 (1986).
Anderson v. Liberty Lobby,
The Court must view the record
in the light most favorable to the nonmoving party.
See Bryant
v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002).
The
moving party must initially show the absence of a genuine
dispute of material fact, and once it has met its burden, the
nonmovant "must come forward and show that a genuine dispute
exists."
Arrington v. ER Williams, Inc., No. I:llcv535, 2011
U.S. Dist. LEXIS 144909, at *11-12 (E.D. Va. Dec. 16, 2011)
(Cacheris, J.) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986) and Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Co*T>.. 475 U.S. 574, 586-87 (1986)).
The nonmoving party,
however, "must do more than simply show that there is some
metaphysical doubt as to the material facts."
U.S. at 586.
Matsushita, 475
Accordingly, the "mere existence of a scintilla of
evidence in support of the [nonmovant's] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [nonmovant]."
252.
Therefore,
Anderson, 477 U.S. at
"[w]here the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party,"
summary judgment is appropriate.
Matsushita, 475 U.S. at 587.
B. Applicable Law
As a contractor for the Navy, plaintiff's rights and duties
are governed by the North Atlantic Treaty Organization Status of
Forces Agreement ("NATO SOFA" or "SOFA") and the Mutual Defense
Cooperation Agreement Between the Government of the United
States of America and the Government of the Hellenic Republic
("MDCA"), to which both Greece and the United States are
parties.
The NATO SOFA provides that
It is the duty of a force and its civilian component
and the members thereof as well as their dependents to
respect the law of the receiving State, and to abstain
from any activity inconsistent with the spirit of the
present Agreement, and, in particular, from any
political activity in the receiving State. It is also
the duty of the sending State to take necessary of
[sic] measures to that end.
NATO SOFA Art. II.
The MDCA supplements the NATO SOFA
definition of the term "civilian component" to include, among
other persons, dependents and "non-Greek persons employed by
United States contractors directly serving the United States
forces in Greece."
See Gov't Reply Ex. 1 at 9 1 4(a) (Annex to
the MDCA).4
The language of the two treaties clearly indicates
that, by virtue of his position with Doss Aviation as a
contractor "directly serving the United States forces in
Greece," Alex qualifies as a member of the "civilian component"
and must therefore "respect the law" of Greece.
At issue in this litigation is Article 13 of the Greek
constitution, which reads in part:
1. Freedom of
religious conscience is
inviolable.
The
enjoyment of civil rights and liberties does
depend on the individual's religious beliefs.
not
2. All known religions shall be free and their rites
of worship shall be performed unhindered and under
the protection of the law. The practice of rites of
worship is not allowed to offend public order or
the
good
usages.
(emphasis added).
Proselytism
is
prohibited
The proselytism prohibition is the basis of the Navy's cease and
desist letter to plaintiff.
"Proselytism" is defined in the
Greek statute criminalizing the practice as "any direct or
indirect attempt to intrude on the religious belief of a person
of a different religious persuasion (eterodoxos), with the aim
of undermining those beliefs, either by any kind of inducement
or promise of an inducement or moral support or material
Similarly, the NATO SOFA defines "civilian component" as "the
civilian personnel accompanying a force of a Contracting Party
who are in the employ of an armed service of that Contracting
Party, and who are not stateless persons, nor nationals of any
State which is not a Party to the North Atlantic Treaty, nor
nationals of, nor ordinarily resident in, the State in which the
force is located." NATO SOFA Art. I 3 1(b).
assistance, or by fraudulent means or by taking advantage of his
inexperience, trust, need, low intellect, or naivety."
See Kokkinakis v. Greece, 260 Eur. Ct. H.R. U 16 (1993) (quoting
Greek Law Nos. 1363/1938 § 4 and 1672/1939 § 2).
In its status report, the Navy has relied upon Kokkinakis
v. Greece, in which the European Court of Human Rights reviewed
Greek case law interpreting the meaning of "proselytism."
As
explained in one cited case, as a general matter, "any
determined, importunate attempt to entice disciples away from
the dominant religion by means that are unlawful or morally
reprehensible" is considered proselytism, though mere spiritual
teaching is not included.
Id. U 17.
Distribution of religious
literature appears to be a gray area: handing out books door to
door or in the street has not been considered proselytism,
whereas distributing religious literature to "illiterate
peasants" or "young schoolchildren" was deemed prohibited
proselytism.
See id. M
18, 20.
In addition to this case law,
the Navy offers anecdotal accounts of other arrests and
prosecutions for proselytizing in Greece, citing to news and
United States Department of State reports.
Report at 11-12.
See Def.'s Status
In two of the three examples, the accused was
ultimately acquitted, and in the third, the defendant was
sentenced to four months imprisonment and a fine.
Id.
Although
an element of pressure appears to characterize successful
10
prosecutions for proselytism, the applicability to plaintiff of
the wide array of case law on the subject is far from clear,
particularly given the variety of activities and services
apparently provided by plaintiff's ministry.
Whether his
conduct constitutes proselytism under Greek law is a close
question, and one the Court need not decide, as discussed
further below.
C. Deference to Military Decision-making
The Navy argues that the cease and desist order should be
upheld "given [the Navy's] duty [under international agreements]
to prohibit activities which could be construed as violating
host nation laws before a violation occurs," especially in light
of the traditional deference given to military decision-making
regarding its own affairs.
(emphasis in original).
See Def.'s Status Report at 13
Courts have long accorded substantial
deference to military decision-making.
It is well-settled that
[w]hile the members of the military are not excluded
from the protection granted by the First Amendment,
the different character of the military community and
of
the military
mission requires
a
different
application of those protections.
The fundamental
necessity for obedience, and the consequent necessity
for imposition of discipline, may render permissible
within
the
military
that
which
constitutionally impermissible outside it.
Parker v. Lew, 417 U.S. 733, 758 (1974).
would
be
The Fourth Circuit
has similarly emphasized the "great deference" owed to military
decisions in light of civilian courts' lack of competence in the
11
area of military affairs.
See Berry v. Bean, 796 F.2d 713, 716
(4th Cir. 1986); see also Rostker v. Goldberg, 453 U.S. 57, 65
(1981) (noting that "the lack of competence on the part of the
courts is marked" in the area of regulating the military).5
In recognition of the "traditional reluctance of courts to
interfere in internal military decisions," the Fourth Circuit
has adopted a two-step test to determine whether the actions of
military officials are reviewable.
357, 359 (4th Cir. 1985).
Williams v. Wilson, 762 F.2d
The Court must first make a threshold
determination that there is "(a) an allegation of the
deprivation of a constitutional right, or an allegation that the
military has acted in violation of applicable statutes or its
own regulations, and (b) exhaustion of available intraservice
corrective measures."
Id^ (quoting Mindes v. Seaman, 453 F.2d
Plaintiff's status as a civilian does not alter the deference
due the Navy's decision in this case. As a contractor for the
military, plaintiff's conduct is explicitly covered by the NATO
SOFA and the MDCA. In other contexts, courts have deferred to
military decisions that affect civilians both associated with
the military and not.
For example, in upholding the male-only
draft against an equal protection challenge, the Supreme Court
explained that "Congressional judgments concerning registration
and the draft are based on judgments concerning military
operations and needs,...and the deference unquestionably due the
latter judgments is necessarily required in assessing the former
as well."
Rostker v. Goldberg, 453 U.S. 57, 68 (1981).
The
Fourth Circuit has also held that a base commander's authority
to exclude a civilian from base "is limited only by the
requirement that the officer not rely on grounds that are
patently arbitrary or discriminatory." Berry v. Bean, 796 F.2d
713,
716 (4th Cir. 1986).
12
197, 201 (5th Cir. 1971)).6
have been met,
(1)
the
challenge
potential
refused;
After these threshold requirements
the Court must balance four factors:
nature
and
strength
of
the
plaintiff's
to the military determination;
(2)
the
injury to the plaintiff
if review is
(3)
the
type
and
degree
of
anticipated
interference with the military function;
(4)
the
extent to which the exercise of military expertise or
discretion is involved.
Id-
The Fourth Circuit later went on to hold that "federal
civilian courts are without power to review actions of military
authorities where the interference with the military function
would be such as to seriously impede the military in the
performance of vital duties."
Scott v. Rice, 1993 U.S. App.
LEXIS 24641, at *6 (4th Cir. 1993) (quoting Mindes, 453 F.2d at
201-02.) (internal quotation marks and alterations omitted) .
"With equal, if not stronger force, matters related to foreign
policy are rarely proper subjects for judicial intervention."
Oram v. Dalton, 927 F. Supp. 180, 184 (E.D. Va. 1996).
All of these considerations point strongly to affording
deference to the Navy's cease and desist letter in this
instance.
6
As to plaintiff's First Amendment claim, "when
Here, the Navy does not contest that Alex has sufficiently
"alleged that there has been a deprivation of a constitutional
right and an exhaustion of intra-service remedies." Def.'s Mem.
at 13.
it is not clear what administrative remedies were
available to plaintiff as a contractor for the Navy.
Alex
appears to have contested the validity of the cease and desist
letter with Staff Judge Advocate Gonzales and subsequently
sought EEO counseling and pursued an EEO claim through the
appellate stage.
13
evaluating whether military needs justify a particular
restriction on religiously motivated conduct, courts must give
great deference to the professional judgment of military
authorities concerning the relative importance of a particular
military interest."
(1986).
Goldman v. Weinberger, 475 U.S. 503, 507
The Supreme Court's decision in Goldman is particularly
instructive in this case.
There, an Orthodox Jewish airman
challenged an Air Force regulation which prohibited wearing of
headgear indoors, including yarmulkes.
The plaintiff argued
that the rule violated his First Amendment right to exercise his
religion.
The Court upheld the regulation as constitutional,
specifically rejecting the airman's argument that the military
had not made a sufficient showing that wearing a yarmulke would
undermine discipline.
The court held instead that "[t]he
desirability of dress regulations in the military is decided by
the appropriate military officials, and they are under no
constitutional mandate to abandon their considered professional
judgment" and that the challenged provisions "reasonably and
evenhandedly regulate dress in the interest of the military's
perceived need for uniformity."
Id. at 509-10.7
7 Goldman was superseded by 10 U.S.C. § 774(a)-(b), which permits
members of the military to "wear an item of religious apparel
while wearing the uniform of the member's armed force," unless
the Secretary prohibits the practice because "the wearing of the
item would interfere with the performance of the member's
military duties" or because "the item of apparel is not neat and
14
In Alex's case, the military's stated need to ensure that
military and associated civilian personnel abide by the laws of
Greece in compliance with the United States'
obligations is a real and serious concern.
international
There is no evidence
that the Navy's proffered justifications for its decision are
pretextual or otherwise disingenuous; rather, the evidence
produced during discovery establishes that the Navy has not
improperly targeted plaintiff because of his particular
religious beliefs nor has it singled him out from other
personnel engaging in public religious activities.
To the
contrary, Captain McDonough avers that he was not aware of the
names of any other individual participants in plaintiff's
ministry and the Navy issued a general order to all sailors
prohibiting their involvement.
Decl. fH 2, 5.
McDonough Decl. U 2; Hansen
See also Oram, 927 F. Supp. at 185 (holding that
the military's decision prohibiting a military dependent from
practicing law out of his on-base residence was "not arbitrary
or discriminatory in any way" because it was based on a treaty
with the host nation and agency rules).
Whether plaintiff's conduct does or does not definitively
qualify as "proselytism" under Greek law is ultimately beside
conservative."
Although Congress has now statutorily permitted
the wearing of religious apparel, the Court's constitutional
holding in Goldman remains unaltered, i.e., military
prohibitions on such apparel do not violate the Constitution.
15
the point.
The Navy is entitled to err on the side of caution
so as to ensure a successful mission in Greece.
As in Goldman,
the Navy has "reasonably and evenhandedly" made a determination
based on its perceived needs and obligations, and is "under no
constitutional mandate to abandon [its] considered professional
judgment."
Goldman, 475 U.S. 509-10.
Indeed, a "commanding
officer must be afforded substantial latitude in balancing
competing military needs and first amendment rights."
v. Schlesinger, 511 F.2d 1327, 1332 (D.C. Cir. 1975).8
Carlson
Here, the
Navy's determination that plaintiff's conduct may violate Greek
law and threaten host nation relations was entirely reasonable
in light of the public religious nature of plaintiff's
activities and the unsettled definition of proselytism under
Greek and European Union law.
By seeking the advice of a JAG
officer as well as a Greek attorney, the Navy made a reasonably
well-informed decision that plaintiff's activities impermissibly
bordered on illegality.
The Court thus agrees with the Oram
court's caution, that it should "be extremely hesitant to
interfere with [the Navy's] responsibility to ensure [] command
decisions do not violate either the express terms or the spirit
of international agreements by which [the host nation] permits
Although the Carlson court addressed military decision-making
in combat zone situations, its reasoning is equally applicable
here, where the military takes action consistent with its view
of its international obligations and the law of the host
country.
16
the continued presence of U.S. forces."
Oram, 927 F. Supp. at
186.
For the same reasons, the degree of anticipated
interference with the military function due to plaintiff's
religious activities is significant, as the Navy's failure to
meet its obligations under the SOFA could considerably
jeopardize host nation relations.
Although plaintiff argues
that his group has received a positive reception from the local
community and that Greek authorities have never sought to end
his ministry, given the close question as to the definition of
proselytism, the Navy's concern with potential violations of
Greek law is reasonable.
Moreover, there is no guarantee that
future Greek officials will take such a permissive approach to
plaintiff's ministry or to others like it.
As to the third
Williams/Mindes factor, compliance with international treaties
and maintaining positive relations with the host nation are
unquestionably within the sphere of military discretion.
As
Chaplain Hansen averred, the Xania government and religious
community expect considerable involvement of the command when
organizing public religious events, even when participation in
such events is limited to members of the NSA Souda Bay
community.
See Hansen Decl. U 3.
How to appropriately navigate
the expectations of the Greek government and public so as to
17
promote the Navy's mission is not a proper subject for secondguessing by courts.
In contrast, although plaintiff's ability to engage in
public religious demonstrations is certainly curtailed by the
cease and desist letter, he still retains many avenues to
practice his religion and engage in activities similar to his
current ministry.
Of course, the cease and desist letter does
not prohibit him from private worship, nor does it prohibit all
public religious activities, but merely requires pre-clearance
from the command.
Moreover, the Navy maintains that it
encourages its personnel to engage in community service
activities, suggesting that plaintiff could continue to
distribute food and clothing to the needy without the religious
overtones currently employed, so long as his conduct does not
jeopardize the Navy's status in Greece.
III.
CONCLUSION
Considering all of the foregoing factors, the Court will
defer to the Navy's decision and uphold the cease and desist
letter.
Accordingly, defendant's motions will be granted and
this civil action will be dismissed by an Order to accompany
this Memorandum Opinion.
Entered this JLO day of June, 2012.
Alexandria, Virginia
Leonie M. Brinkema
18
United States District Judge
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