Heap et al v. Hagel et al

Filing 79

MEMORANDUM OPINION re Motions to Dismiss. Signed by District Judge James C. Cacheris on 7/1/15. (klau, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
JASON DANIEL HEAP, et al.,
Plaintiffs,
v.
ASHTON CARTER, et al.,
Defendants.

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M E M O R A N D U M

1:14cv1490(JCC/TCB)

O P I N I O N

Dr. Jason D. Heap applied to be a chaplain in the U.S.
Navy and was rejected.

He, along with The Humanist Society, the

organization that endorsed him for the chaplaincy, bring this
suit against the Department of Defense, the U.S. Navy, and
several military officers in their official and individual
capacities alleging that the Department of Defense and the Navy
have an unconstitutional policy of discrimination against
Humanism.

This matter is before the Court on the Official

Defendants’ Motion to Dismiss and for Summary Judgment [Dkt. 42]
and on the Individual Defendants’ Motion to Dismiss [Dkt. 39].
The Court will grant in part and deny in part the Official
Defendants’ motion.

THS will be dismissed from the case because

it lacks standing under any theory it has advanced.

The

Religious Freedom Restoration Act claims, the constitutional
1

Free Exercise Clause and No Religious Test Clause claims, and
the speech and associational claims under the First Amendment
will be dismissed.

The Official Defendants’ motion for summary

judgment as to the Establishment Clause and Equal
Protection/Substantive Due Process claims will be denied.
Court will grant the Individual Defendants’ motion.

The

The Court

declines to create a damages remedy under Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics.

Even if such a

remedy were available, however, the Individual Defendants are
entitled to qualified immunity.

This Memorandum Opinion

memorializes the Court’s reasoning.
I. Background
Dr. Jason Heap (“Dr. Heap”) is an Oxford Universityeducated instructor in history and theology who has spent ten
years leading religious services and teaching in the United
States and internationally.

(Am. Compl. [Dkt. 32] ¶ 2.)

He is

a Humanist and is certified as a Humanist Celebrant by The
Humanist Society (“THS”), a § 501(c)(3) tax-exempt organization
qualified as a church under the Internal Revenue Code.

(Id.)

As a Celebrant, Dr. Heap is deemed qualified by THS to lead
services, give ceremonial invocations, officiate at funerals and
weddings, and perform other ritual functions that are also
performed in other religious traditions.

(Id.)

Dr. Heap does not believe in a god or gods.
2

As a Humanist,

(Id. ¶ 3.)

Rather,

he believes in a system of ethical principles “that are as
central and guiding as the moral precepts developed in religious
traditions that believe in a god or gods.”

(Id.)

After

consulting with religious and academic colleagues and mentors,
Dr. Heap applied to become a chaplain in the U.S. Navy Chaplain
Corps (“Chaplain Corps”).

(Id. ¶ 5.)

Chaplain recruitment is governed by regulations from
both the Navy and the Department of Defense (“DoD”).
(citing relevant regulations).)

(Id. ¶ 46

The Chaplain Appointment and

Retention Eligibility Advisory Group (“CARE Board”) reviews
applications for the Navy Chaplaincy Corps.

(Id.)

The CARE

Board reviews professional qualifications and forwards a
recommendation regarding a chaplain applicant to the U.S. Navy
Chief of Chaplains.

(Id.)

If the CARE Board certifies the

applicant’s professional qualifications, the Deputy Chief of
Naval Operations, or the Commander, Navy Recruiting Command
(acting on behalf of the Deputy Chief), determines whether the
applicant is otherwise qualified for a commission as a chaplain.
(Id.)

The Chief of Chaplains approves or disapproves the

recommendation by the CARE Board and then forwards it to the
Chief of Naval Personnel, who makes the final determination as
to whether the applicant is accepted or denied.

(Id.)

An applicant for the chaplaincy must also demonstrate
that he or she has received the endorsement of a religious
3

organization by submitting form “DD 2088.”

(Id. ¶ 47 (citing

Department of Defense Instruction (“DoDI”) 1304.28 ¶ 6.1
(2014)).)

DoD and Navy instructions create a two-track system

for endorsements submitted by endorsing religious organizations.
(Id. ¶ 48.)

If the applicant’s endorsing organization has

previously endorsed an applicant who was accepted into the
chaplaincy, the applicant need file only a single form
indicating the endorsement of his or her religious organization.
(Id.)

The Armed Forces Chaplain Board (“AFCB”) keeps a list of

these organizations.

(Id.)

If, however, the Navy has not

accepted a chaplain candidate endorsed by the religious
organization, the organization must submit additional
documentation1 and obtain the approval of the AFCB.
1

(Id.)

DoDI

That documentation must demonstrate that the religious
organization:
 “is organized as an entity functioning primarily to perform
religious ministries to a non-military lay constituency and
currently holds a section 501(c)(3) exempt status . . . as
a church for Federal tax purposes from the Internal Revenue
Service . . .”;
 “possesses ecclesiastical authority to grant and withdraw
initial and subsequent ecclesiastical endorsement for
ministry in the Armed Forces”;
 “verifies the religious organization shall provide
chaplains who shall function in a pluralistic environment .
. . and who shall support directly and indirectly the free
exercise of religion by all members of the Military
Services, their family members, and other persons
authorized to be served by the military chaplaincies”; and
 “agrees to abide by all DoD Directives, Instructions, and
other guidance and with Military Department regulations and
policies on the qualification and endorsement of [religious
ministry professionals] for service as military chaplains.”
4

1304.28 requires the AFCB to accept the required documents from
an organization seeking recognition as a qualified endorser only
when the applicable military department has determined that the
candidate was otherwise qualified.

(Id. ¶ 78.)

Dr. Heap contacted Chaplains Program Officer and Navy
Chaplain Lt. Joel DeGraeve (“Lt. DeGraeve”) in February 2013 to
inquire about becoming a chaplain.

(Id. ¶ 67.)

After reviewing

Dr. Heap’s credentials, Lt. DeGraeve told Dr. Heap that his
academic record and international experience make him a highly
qualified candidate for the Navy chaplaincy.

(Id.)

Lt.

DeGraeve encouraged Dr. Heap to apply and said that Lt.
DeGraeve’s own endorser, the Evangelical Christian Alliance
(“Alliance”), would endorse Dr. Heap.

(Id. ¶¶ 67, 68.)

Dr.

Heap began to apply for an endorsement from the Alliance, but
concluded that the Alliance did not accurately reflect his
religious views.

(Id. ¶ 69.)

endorsement from THS.

Instead, Dr. Heap requested an

(Id.)

As part of the application process, Dr. Heap
interviewed with U.S. Marine Chaplain (Lt. Commander, Retired)
Rabbi Reuben Israel Abraham (“Rabbi Abraham”).

(Id. ¶ 74.)

Rabbi Abraham gave Dr. Heap a perfect ranking in his assessment
of Dr. Heap’s qualifications to serve as chaplain.
Heap then met with Lt. DeGraeve.
(Id. ¶ 49 (citing DoDI 1304.28).)
5

(Id. ¶ 75.)

(Id.)

Lt. DeGraeve

Dr.

reiterated that Dr. Heap was highly qualified to serve as a Navy
chaplain and that Lt. DeGraeve would attempt to fast track Dr.
Heap’s application so that he could appear before the CARE Board
soon, in either July or August 2013.

(Id.)

As of June 2013,

Dr. Heap had submitted all of the paperwork required by the DoD
and Navy except for the paperwork identifying his endorsing
religious organization.

(Id. ¶ 76.)

The Navy and AFCB learned that Dr. Heap is a Humanist
for the first time on July 3, 2013, when the AFCB received
administrative paperwork identifying THS as Dr. Heap’s endorsing
organization.

(Id. ¶ 77.)

The AFCB accepted THS’s

administrative paperwork on July 3, 2013.

(Id. ¶ 79.)

Lt. DeGraeve contacted Dr. Heap in late July 2013 and
told him that being endorsed by THS rather than the Alliance
could pose a problem for his application.

(Id. ¶ 83.)

Soon

after Dr. Heap and THS submitted their applications, political
pressure mounted on DoD to deny them.

(Id. ¶ 85.)

Twenty-one

members of Congress submitted a letter to then-Secretary of
Defense Charles Hagel, with copies to Secretary of the Navy Ray
Mabus and Chief of Navy Chaplains Rear Admiral Mark L. Tidd
(“Rear Admiral Tidd”), to express their concern over Dr. Heap’s
and THS’s applications.

(Id. ¶ 85.)

Representative John

Fleming introduced legislation in the House of Representatives
to prevent DoD from accepting Humanist chaplains.
6

(Id. ¶ 86.)

Media outlets reported that an atheist had applied to become a
chaplain in the Navy. (Id. ¶ 87.)
Meanwhile, Dr. Heap continued to check on the status
of his application.

(Id. ¶ 88.)

Dr. Heap wrote to Lt. DeGraeve

on July 12, 2013 to inquire whether his application would be
complete before the next CARE Board meeting.

(Id.)

Around the

same time, a THS representative contacted Rear Admiral Tidd and
offered to discuss Dr. Heap’s and THS’s applications, which Rear
Admiral Tidd declined.

(Id.)

In response to a letter from legal counsel, in a
letter dated March 28, 2014, the Navy invited Dr. Heap to appear
before the April 8, 2014 CARE Board in Washington, D.C.
95.)

(Id. ¶

Given the short amount of time and extensive travel

required,2 Dr. Heap nonetheless agreed to appear and did appear
at the May 13, 2014 CARE Board.

(Id. ¶¶ 95, 97.)

On May 27, 2014, Lt. DeGraeve contacted Dr. Heap and
told him that his application had been denied.

(Id. ¶ 98.)

Dr.

Heap requested a written denial stating reasons for the
decision.

(Id.)

He received a letter explaining that he was

denied for the position but without stating any of the reasons.
(Id.)

2

Dr. Heap was living abroad during the pendency of his
application.
7

Heap and THS (collectively “Plaintiffs”) argue that
Defendants discriminated against Heap and THS because Plaintiffs
are Humanists.

(Id. ¶ 198.)

Defendants made this determination

by applying to Plaintiffs a Navy and DoD policy and practice of
not recognizing Humanism as a religion or according it equal
treatment to other religions.

(Id. ¶ 198.)

Plaintiffs have

filed the instant lawsuit, naming several defendants.

They

allege seven different sources of law in the complaint as
grounds for relief: (1) Religious Freedom Restoration Act
(“Count One”) (Id. ¶¶ 210-218); (2) Establishment Clause (“Count
Two”) (Id. ¶¶ 219-227); (3) Free Exercise Clause (“Count Three”)
(Id. ¶¶ 228-234); (4) Equal Protection and Substantive Due
Process (“Count Four”) (Id. ¶¶
Clause (“Count Five”) (Id. ¶¶

235-242); (5) No Religious Test
243-248); (6) subject matter and

viewpoint discrimination, prior restraint, and freedom of
association under the First Amendment (“Count Six”) (Id. ¶¶ 249261); and (7) Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, against the Individual Defendants3 in

3

Plaintiffs have sued eleven U.S. Navy, U.S. Army, U.S. Air
Force and DoD officials, each in his or her own individual
capacity. These defendants are: Rear Admiral Tidd, former Chief
of Chaplains, U.S. Navy; Rear Admiral Annie B. Andrews,
Commander, Navy Recruiting Command; Rear Admiral Margaret G.
Kibben, Chief of Chaplains, U.S. Navy; Rear Admiral (Retired)
Gregory C. Horn, Deputy Chief of Chaplains for Reserve Matters,
Marine Forces Reserve; Rear Admiral Daniel L. Gard, Deputy Chief
of Chaplains for Reserve Matters, U.S. Navy; Vice Admiral
William F. Moran, Chief of Naval Personnel, U.S. Navy; Major
8

violation of the constitutional provisions alleged in Counts Two
through Four and Count Six (“Count Seven”) (Id. ¶¶ 262-263).
Plaintiffs seek a declaratory judgment stating that denying
Plaintiffs’ applications violated the Plaintiffs’ rights under
the Religious Freedom Restoration Act, the First and Fifth
Amendments, and/or the No Religious Test clause of the
Constitution and a declaration that DoDI 1304.28 is
unconstitutional under the No Religious Test clause.
82.)

(Id. at

Additionally, Plaintiffs seek an order instating Heap as a

Navy chaplain and awarding back pay and damages; requiring DoD
and the Navy to recognize THS as a qualified ecclesiastical
endorser within the meaning of the relevant regulations or
alternatively, declaring the Navy and DoD’s policy requiring
chaplaincy candidates to be endorsed by a religious organization
unconstitutional and void; enjoining Defendants from requiring
THS to comply with the procedures for first-time ecclesiastical
endorsers in DoDI 1304.28; enjoining Defendants from rejecting
applications from candidates for the Navy chaplaincy and from
organizations seeking to become qualified ecclesiastical
endorsers on the basis that the candidates and/or organization

General Donald L. Rutherford, Chief of Chaplains, U.S. Army;
Brigadier General Charles R. Bailey, Deputy Chief of Chaplains,
U.S. Army; Brigadier General Bobby V. Page, Deputy Chief of
Chaplains, U.S. Air Force; Major General Howard D. Stendahl,
Chief of Chaplains, U.S. Air Force; and Jessica L. Garfola
Wright, Under Secretary of Defense for Personnel and Readiness.
9

are Humanists, or alternatively, declaring that Defendants may
not require that applicants for the chaplaincy be adherents of
any religion; awarding Dr. Heap equitable relief in the form of
back pay; awarding Dr. Heap monetary relief in the form of lost
wages and other compensatory damages; and awarding Plaintiffs
reasonable costs and expenses.

(Id. at 83-84.)

All Defendants have moved to dismiss.

The Official

Defendants move to dismiss all counts except Counts Two
(Establishment Clause) and Four (Equal Protection and
Substantive Due Process), for which they move for summary
judgment.
43].)

(See generally Official Defs.’ Mem. in Supp. [Dkt.

The Individual Defendants move to dismiss Counts One and

Seven, the only counts asserted against them.
Individual Defs.’ Mem. in Supp. [Dkt. 40].)

(See generally

Having been fully

briefed and argued, this motion is ripe for disposition.
II. Legal Standard
A. Motion to Dismiss
“A motion to dismiss under Rule 12(b)(6) tests the
sufficiency of a complaint[.]”

Republican Party of N.C. v.

Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted).
The Supreme Court has stated that in order “[t]o survive a
motion to dismiss, a [c]omplaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678
10

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

“A claim has facial plausibility when the pleaded

factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”

Iqbal, 556 U.S. at 678.

Id.

The issue in resolving

such a motion is not whether the non-movant will ultimately
prevail, but whether the non-movant is entitled to offer
evidence to support his or her claims.
Moreover, the plaintiff does not have to show a
likelihood of success on the merits.

Rather, the complaint must

merely allege – directly or indirectly – each element of a
“viable legal theory.”

Twombly, 550 U.S. at 562-63.

B. Summary Judgment
Summary judgment is appropriate only where, on the
basis of undisputed material facts, the moving party is entitled
to judgment as a matter of law.

See Fed. R. Civ. P. 56; Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The moving party

always bears the initial burden of “informing the district court
of the basis for its motion,” and identifying the matter “it
believes demonstrate[s] the absence of a genuine issue of
material fact.”

Celotex, 477 U.S. at 323.

Once a motion for

summary judgment is properly made and supported, the opposing
party has the burden of showing that a genuine dispute exists.
See Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d
11

294, 299 (4th Cir. 2012) (stating the opposing party must “come
forward with specific facts showing that there is a genuine
issue for trial.”).
In reviewing the record on summary judgment, the Court
“must draw any inferences in the light most favorable to the
non-movant” and “determine whether the record taken as a whole
could lead a reasonable trier of fact to find for the nonmovant.”

Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253,

1259 (4th Cir. 1991) (citations omitted).

“[A]t the summary

judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
III. Analysis
A. Jurisdiction
1. Justiciability of Dr. Heap’s Claims
The Official Defendants argue Dr. Heap’s claims must
be dismissed because he seeks relief in this action that is
beyond the authority of the judiciary to grant, namely, a
judicial declaration that Heap is “qualitatively superior to
other candidates selected for accession” and an order directing
Defendants to commission Heap as an officer in the Navy Chaplain
Corps.

(Official Defs.’ Mem. in Supp. [Dkt. 43] at 15.)

Dr.

Heap argues that religious discrimination is not entrusted to
12

the political branches.

(Pls.’ Opp’n [Dkt. 61] at 11.)

Additionally, he argues that even if one measure of requested
relief fails, his entire complaint does not fail because he
seeks other remedies that are squarely within the Court’s power
to order.

(Id. at 14-15.)
Federal courts are courts of limited jurisdiction and

possess only that power authorized to them by the United States
Constitution and by federal statute.

Article III of the

Constitution limits the jurisdiction of federal courts to “cases
and controversies.”

This requirement serves two purposes:

conserving judicial resources to cases “presented in an
adversary context and in a form historically viewed as capable
of resolution through the judicial process” and “assur[ing] that
the federal courts will not intrude into areas committed to the
other branches of government.”
(1968).

Flast v. Cohen, 392 U.S. 83, 95

This “dual limitation” is known as justiciability.

Id.

The scope of justiciability “is illustrated by the various
grounds upon which questions sought to be adjudicated in federal
courts have held not to be justiciable.”

Id.

A case is non-

justiciable when the parties seek only adjudication of a
political question, when the parties are asking for an advisory
opinion, when the case has been mooted by subsequent
developments, and when a party has no standing to maintain the
action.

Id.
13

The Official Defendants argue Heap’s claims are nonjusticiable because the relief they seek would require this
Court to intrude into matters committed to the executive and
legislative branches.

(Official Defs.’ Mem. in Supp. at 16.)

The Constitution vests authority in the President, with the
advice and consent of the Senate, to determine whom to
commission as a Navy officer.

See U.S. Const. art II, § 2, cl.

2; see also 10 U.S.C. § 531(a)(1) (providing that the President
may appoint Navy officers in grades up to and including that of
lieutenant without the advice and consent of the Senate).
It is clear that this Court lacks power to order Dr.
Heap’s instatement as a Navy chaplain.

U.S. Const. art. II, §

2, cl. 2; Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1511 (D.C.
Cir. 1989) (stating plaintiff’s demand for appointment as an
officer is “squarely within the realm of nonjusticiable military
personnel decisions”).

However, this does not mean that Dr.

Heap’s suit fails.
First, while this Court has “no quarrel . . . that the
operation of the military is vested in Congress and the
Executive, and that it is not for the courts to establish the
composition of the armed forces,” that does not mean that this
Court lacks jurisdiction to decide constitutional questions that
arise out of military decisions about establishing the armed
forces.

Emory v. Sec’y of Navy, 819 F.2d 291, 294 (D.C. Cir.
14

1987).

“Where it is alleged, as here, that the Armed Forces

have trenched upon constitutionally guaranteed rights through
the promotion and selection process, the courts are not
powerless to act.

The military has not been excepted from

constitutional provisions that protect the rights of
individuals.”

Id. (citing Parker v. Levy, 417 U.S. 733 (1974)).

In fact, “it is precisely the role of courts to
determine whether those rights have been violated.”

Id.

(citation omitted) (reversing district court’s dismissal for
lack of subject matter jurisdiction in case where plaintiff
alleged he was not promoted to rear admiral because of racial
discrimination); see also Chappell v. Wallace, 462 U.S. 296, 301
(1983) (“This Court has never held, nor do we now hold, that
military personnel are barred from all redress in civilian
courts for constitutional wrongs suffered in the course of
military service.”); Wigginton v. Centracchio, 205 F.3d 504, 512
(1st Cir. 2000) (“The second, and controlling reason is that,
taken together Chappell and [United States v.] Stanley . . .
make it clear that intramilitary suits alleging constitutional
violations but not seeking damages are justiciable.”); Dillard
v. Brown, 652 F.2d 316, 320 (3d Cir. 1981) (“Yet these sections
of the Constitution [art. II, § 2 and art. I, § 8] do not
provide or intimate that, when statutes or regulations regarding
the composition of the military trench upon other constitutional
15

guarantees, the courts are powerless to act.”); cf. Kreis, 866
F.2d at 1511 (stating plaintiff’s non-constitutional challenge
to military assignment and lack of promotion non-justiciable).
Here, Heap claims that he has been improperly discriminated
against because of his religious beliefs.

Determining whether

his constitutional rights have been violated in the process is
clearly within this Court’s competence and jurisdiction.
Second, Dr. Heap’s action does not fail because the
Court is powerless to order one of his requested remedies:
instatement as a Navy chaplain.

“Although Rule 8(a)(3) of the

civil rules requires that a complaint contain a ‘demand for
judgment for the relief the pleader seeks,’ the demand is not
itself part of the plaintiff’s claim.”

Bontokowski v. Smith,

305 F.3d 757, 762 (7th Cir. 2002) (citing 5 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure, § 1255 (2d
ed. 1990)).

Therefore, failure to specify relief to which the

plaintiff is entitled does not warrant dismissal for failing to
state a claim.

Id.

This conclusion is supported by Federal

Rule of Civil Procedure 54(c), which states “[e]very other final
judgment should grant the relief to which each party is
entitled, even if the party has not demanded that relief in its
pleadings.”

(emphasis added); see Bontkowski, 305 F.3d at 762

(collecting cases); Charles v. Front Royal Vol. Fire & Rescue
Dep’t, Inc., 21 F. Supp. 3d 620, 629 (W.D. Va. 2014) (“[T]he
16

selection of an improper remedy in the demand for relief will
not be fatal to a party’s pleading if the statement of the claim
indicates the pleader may be entitled to relief of some other
type.”).
Here, Dr. Heap has requested several forms of relief,
including a declaratory judgment that the rejection of his
application violated his rights under the Religious Freedom
Restoration Act and the First and Fifth Amendments, and/or the
No Religious Test Clause of the Constitution, as well as a
declaration that DoDI 1304.28 is unconstitutional as violative
of the No Religious Test Clause.

(Am. Compl. at 82.)

The

Official Defendants argue that declaratory relief would not be
an appropriate resolution of this case because it would not have
any effect on their behavior toward Dr. Heap, thus amounting to
nothing more than an advisory opinion.

They cite to Dynaquest

Corp. v. U.S. Postal Service, 242 F.3d 1070 (D.C. Cir. 2001) in
support.

(Official Defs.’ Mem. in Supp. at 15 n.8.)

is inapposite here.

Dynaquest

In Dynaquest, the D.C. Circuit rejected the

plaintiff’s challenge to the decision of the Postal Service
Administrative Judicial Officer (“AJO”) on grounds that the AJOs
are appointed in violation of the Appointments Clause of the
United States.

Dynaquest, 242 F.3d at 1076.

The court declined

to reach the merits of the Appointments Clause challenge because
“[n]o AJO, regardless of the validity of his appointment, would
17

have authority to decide the issue otherwise.”

4

Id.

Thus,

resolving the Appointments Clause issue in favor of the
plaintiff could not bring the plaintiff any relief and would be
an advisory opinion.

Id.

Here, resolving the issue of whether

Dr. Heap was rejected from the Navy Chaplain Corps would change
the criteria used to evaluate Dr. Heap’s application if he were
to reapply – namely, that the Navy cannot bar him from the
Chaplain Corps on the basis of his affiliation with Humanism.
Accordingly, Dr. Heap’s claims are justiciable, and the Official
Defendants’ motion will be denied as to this ground.
2. THS’s Standing
An organizational plaintiff may establish standing to
bring suit either on its own behalf or on behalf of its members.
White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir.
2005).

“A justiciable case or controversy requires a plaintiff

[who] has alleged such a personal stake in the outcome of the
controversy as to warrant his invocation of federal court
jurisdiction and to justify exercise of the court’s remedial
powers on his behalf.”

Planned Parenthood of S.C. v. Rose, 361

F.3d 786, 789 (4th Cir. 2004) (citations and internal quotation

4

The case involved parallel administrative and judicial
proceedings. The AJO denied the plaintiff’s request for
releasing funds held in escrow because the escrow accounts had
been established under the Agreed Order of the district court
and only that court had jurisdiction over the interpretation and
enforcement of its order. Dynaquest, 242 F.3d at 1071.
18

marks omitted).

Individual as well as organizational plaintiffs

must satisfy this requirement.
458.

White Tail Park, 413 F.3d at

Both the Official Defendants and Individual Defendants

challenge whether THS has standing to bring claims on its own
behalf as well as claims on behalf of Humanist Navy Service
Members.5

(Official Defs.’ Mem. in Supp. at 18-28.)

The Court

addresses each in turn.
a. THS’s Standing to Bring Claims on its Own
Behalf
An organizational plaintiff may establish standing to
bring suit on its own behalf when it seeks redress for a
distinct injury suffered by the organization itself.
Park, 413 F.3d at 458.

White Tail

Like an individual plaintiff, an

organizational plaintiff must provide evidence to support the
conclusion that:
(1) “the plaintiff . . . suffered an injury
in fact - an invasion of a legally protected
interest
which
is
(a)
concrete
and
particularized, and (b) actual or imminent,
not conjectural or hypothetical”; (2) “there
[is] a causal connection between the injury
and the conduct complained of”; and (3) “it
[is]
likely,
as
opposed
to
merely
speculative,
that
the
injury
will
be
redressed by a favorable decision.”
Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061 (1992)).
5

The Individual Defendants incorporate by reference the
arguments of the Official Defendants. (Individual Defs.’ Mem.
in Supp. at 8.)
19

Defendants argue THS lacks standing because it has
failed to demonstrate it suffered a cognizable injury.
(Official Defs.’ Mem. in Supp. at 19.)

Defendants maintain that

because Heap was deemed not qualified by the CARE Board, the
AFCB never had an opportunity to consider THS’s application to
be an endorsing organization.
three possible injuries.

(Id. at 19-20.)

THS alleges

First, THS alleges that the AFCB’s

acceptance of its application on July 3, 2013 before Dr. Heap
appeared before the CARE Board violated DoD policy.

Second, THS

alleges that it failed to obtain recognition as a qualified
endorser because Defendants denied Dr. Heap, its candidate, who
in turn was denied because he was endorsed by THS.
at 16.)

(Pls.’ Opp’n

Stated differently, THS alleges it failed to obtain

recognition as a qualified endorser because the Navy
discriminated against Dr. Heap, thereby establishing a direct
injury against it.

(Id.)

Finally, THS alleges that it suffered

injury from the administrative burden of submitting its
application to the AFCB and bringing this lawsuit.

(Id. at 20.)

Since THS has never successfully endorsed a candidate
for the chaplaincy, it must submit additional documentation and
obtain the approval of the AFCB to become a recognized endorser.
(Am. Compl. ¶ 49.)

DoDI 1304.28 requires the AFCB to accept the

required documents from a first-time ecclesiastical endorser
“only when the applicable Military Department” has determined
20

that the chaplain candidate is otherwise qualified.
¶ 78 (citing DoDI 1304.28 ¶ 6.1.1.3.).)

(Am. Compl.

The AFCB shall notify

the Military Departments of religious organizations that have
filed the prerequisite documents and whose packets have been
found administratively complete.

(DoDI 1304.28 ¶ 6.1.1.3.)

The

Military Departments may evaluate chaplain candidates from
religious organizations that are submitting the administrative
filing requirements for the first time and are pending
determination of whether their prospective chaplain is fully
qualified.

(Id. ¶ 6.1.1.4.)

The Military Departments shall

consult with the AFCB to determine if the administrative
requirements are pending acceptance in such cases.

(Id.)

THS specifically alleges that it was a violation of
DoDI 1304.28 for the AFCB to accept THS’s “administrative
paperwork before the Navy made any determination as to Dr.
Heap’s candidacy.”

(Am. Compl. ¶ 79.)

According to the policy,

the AFCB may ensure that a first-time endorser’s application is
administratively complete and relay that information to the
appropriate Military Department. As alleged here, the AFCB did
just that – it accepted THS’s administrative paperwork.

There

was nothing improper, per the terms of the policy, for the AFCB
to make sure that THS’s application was complete before the CARE
Board had determined whether Dr. Heap was qualified to be a

21

chaplain.

Therefore, THS cannot allege injury based on the

administrative acceptance of its paperwork.
Likewise, THS cannot allege injury based on the denial
of Dr. Heap’s application.

Since the CARE Board never

determined that Dr. Heap was qualified, the AFCB never made a
decision on THS’s application beyond stating that it was
complete.

Imputing Dr. Heap’s injury to THS is not the kind of

concrete injury caused by a defendant’s actions that is required
by constitutional and prudential considerations.
THS contends it has suffered injury under Havens
Realty Corp. v. Coleman, 455 U.S. 363 (1982).

THS argues that

Havens stands for the proposition that an organization has
standing where it “devote[s] significant resources to
identifying and counteracting the defendant’s discriminatory
practice.”

(Pls.’s Opp’n at 20.)

In Havens, plaintiff, a fair

housing non-profit, had alleged that its organizational purpose
had been “frustrated by defendants’ racial steering practices in
its efforts to assist equal access to housing through counseling
and other referral services.

[It] . . . had to devote

significant resources to identify and counteract the defendant’s
racially discriminatory steering practices.”

Id.

However, the

issue in Havens was “the scope of standing to sue under the Fair
Housing Act of 1968.”

Id. at 366.

The complaint identified

plaintiff as “a nonprofit corporation organized under the laws
22

of the State of Virginia whose purpose was to make equal
opportunity in housing a reality in the Richmond Metropolitan
Area.”

Id. at 368.

Thus, assuming the steering practices had

impacted plaintiff’s ability to provide counseling and referral
services for low-and moderate income residents, the Court found
that there “can be no question” that plaintiff suffered injury
in fact.

Id. at 379.

It was more than “simply a setback to the

organization’s abstract social interests” given the plaintiff’s
organizational mission.

Id.; cf. Sierra Club v. Morton, 405

U.S. 727, 739 (1972) (“But a mere interest in a problem, no
matter how longstanding the interest and no matter how qualified
the organization is in evaluating the problem, is not sufficient
by itself to render the organization ‘adversely affected’ or
‘aggrieved’ within the meaning of the APA.”).
THS alleges that it will have to submit documentation
affirming that it satisfies the administrative requirements
necessary to be a qualified religious organization in order to
endorse another chaplain candidate in the future. (Pls.’ Opp’n
at 20 (citing Am. Compl. ¶ 200).)

THS further alleges that this

procedural requirement will frustrate its organizational mission
by impeding its ability to provide Humanist Celebrants to Navy
service members.

(Id. (citing Am. Compl. ¶ 201).)

Defendants

argue these justifications fail to establish standing because
(1) the alleged harm is based on speculation that THS will
23

attempt to endorse a chaplain candidate in the future; (2) the
procedural requirement that THS submit certain administrative
documentation to endorse a candidate in the future will not
frustrate THS’s organizational mission; and (3) the alleged
frustration of an organizational mission by itself is too
abstract of a purported injury to establish standing.

(Official

Defs.’ Mem. in Supp. at 20-23.)
“[A]n injury to organizational purpose, without
more, does not provide a basis for standing.”

S. Walk at

Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands,
LLC, 713 F.3d 175, 183 (4th Cir. 2013) (citing Sierra Club and
distinguishing Havens as finding organizational injury where
“broadly alleged” impairment of an organization’s ability to
advance its purposes combined with an alleged “consequent drain
on the organization’s resources.”).

Merely alleging that THS

has been injured because denying Dr. Heap hurts its mission to
“prepare Humanist Celebrants to lead ceremonial observances . .
. [and] strengthen Humanist communities” is not enough to create
an injury here.

To be sure, reapplying to be an endorsing

organization and bringing this lawsuit are costly, but such
costs do not cut to the core of the organization’s mission like
in Havens. See Nat’l Treasury Emps. Union v. United States, 101
F.3d 1423, 1430 (D.C. Cir. 1996) (“If a defendant's conduct does
not conflict directly with an organization's stated goals, it is
24

entirely speculative whether the defendant's conduct is impeding
the organization's activities.

Moreover, in those cases where

governmental action is challenged, if the government's conduct
does not directly conflict with the organization's mission, the
alleged injury to the organization likely will be one that is
shared by a large class of citizens and thus insufficient to
establish injury in fact.”).

Furthermore, as the Navy points

out, requiring THS to submit administrative documentation for
the next Humanist Navy chaplain applicant will not so frustrate
THS’s organizational mission such that injury is established in
this suit.

(Official Defs.’ Mem. in Supp. at 21.)

Accordingly,

THS does not have standing to bring claims on its own behalf.
b. THS’s Associational Standing
The standing analysis does not end with consideration
of whether THS has organizational standing.

An organizational

plaintiff may also have standing to bring claims on behalf of
its members.

Known as associational standing, the entity must

demonstrate that “(1) its members would otherwise have standing
to sue as individuals; (2) the interests at stake are germane to
the group’s purpose; and (3) neither the claim made nor the
relief requested requires the participation of individual
members in the suit.”

White Tail Park, 413 F.3d at 458.

If a

single member of the organization has standing to bring the
suit, then so, too, does the organization.
25

Friends of the

Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 155
(4th Cir. 2000).
Defendants argue that THS does not have standing to
bring claims on behalf of Humanist service members in the Navy
who do not have access to a Humanist Navy chaplain.
Defs.’ Mem. in Supp. at 23.)

(Official

First, it argues that THS is not a

traditional membership organization nor does it qualify as a
functional equivalent of one, stating instead that THS is simply
an accreditation organization.

(Id. at 23-24.)

Second, even if

this Court determined that THS is a functional equivalent of a
membership organization, THS’s members are Humanist Celebrants,
not Humanist congregants.

Therefore, THS cannot raise the

claims on behalf of Humanist congregants. (Id. at 24-25.)
Third, THS cannot show that the service member THS identifies as
harmed by the Navy’s policy, Chief Electronics Technician
Douglas Wright (“Wright”), has standing to challenge the lack of
a Humanist chaplain in the Navy because a favorable judicial
decision will not remedy Wright’s lack of access to such a
chaplain.

(Id. at 25.)

assertions.

THS denies all of Defendants’

(Pls.’ Opp’n at 22-24.)

The Court turns first to Defendants’ contention that
THS is not a membership organization or a functional equivalent.
“[A]n organization with no formal members can still have
associational standing if it is the functional equivalent of a
26

traditional membership organization.”

Washington Legal Found.

v. Leavitt, 477 F. Supp. 2d 202, 208 (D.D.C. 2007) (citation and
internal quotation marks omitted).

Functional equivalency is

determined if the organization (1) serves a specialized segment
of the community; (2) represents individuals that have all the
indicia of membership, including (i) electing the entity’s
leadership, (ii) serving in the entity, and (iii) financing the
entity’s activities, and (3) its fortunes are tied closely to
those of its constituency.

Id.; see also Hunt, 432 U.S. at 344-

45 (stating that commission had all indicia of traditional
membership organizations).
In the Amended Complaint, THS alleges that “it
maintains an active membership, including members who are
enlisted in the United States Navy.”

(Am. Compl. ¶ 17.)

Elsewhere in the Amended Complaint, THS describes itself as
preparing Humanist Celebrants to provide ministry through an
accreditation process.

(Am. Compl. ¶¶ 142-144, 204.)

Beyond these two allegations, THS has provided no details about
who the membership is or whether THS truly can be considered a
voluntary membership organization or a functional equivalent.
This makes it difficult to determine whether it is, in fact, an
organization capable of asserting associational standing or
whether one of its members has standing to assert the claims at
issue here.

THS has not alleged any information that would
27

allow the Court to find that it has the kind of leadership and
financial structure that is closely tied to that of its members
or that its members exert any control over the direction of the
organization.6

Therefore, THS does not have associational

standing.7
c. Whether THS May Assert Third Party Standing
Additionally, THS argues it has third party standing
to sue on behalf of Humanists in the Navy who are not THS
members.

(Pls. Opp’n at 23-24.)

“Federal courts must hesitate

before resolving a controversy, even one within their
constitutional power to resolve, on the basis of the rights of
third persons not parties to the litigation.”
Wulff, 428 U.S. 106, 113 (1976).

Singleton v.

Thus, the general rule is

“ordinarily, one may not claim standing . . . to vindicate the
constitutional rights of some third party.”

Id. at 113-14

(citation and internal quotation marks omitted).
6

The reasons

THS discusses its membership in paragraph 21 of Jason Torpy’s
(“Torpy”) Declaration, which is attached to the Plaintiffs’
Opposition. When considering a motion to dismiss,
“[o]rdinarily, a court may not consider any documents that are
outside of the complaint, or not expressly incorporated therein,
unless the motion is converted into one for summary judgment.”
Witthohn v. Fed. Ins. Co., 164 F. App’x 395, 396 (4th Cir.
2006). Torpy’s declaration is not a document attached to the
complaint nor expressly incorporated therein, and the Court
declines to convert this motion to one for summary judgment.
Therefore, the Court will not consider Torpy’s declaration in
ruling on this motion.
7
In light of this holding, the Court declines to consider the
whether Wright has standing to bring claims or whether Wright’s
purported injury can be redressed through a lawsuit.
28

for this rule are twofold: it avoids unnecessary litigation, and
it is presumed that the holders of the rights at issue usually
will be the best proponents of their own rights.

Id. at 113-14.

There are two recognized exceptions to the rule
against third party standing.

First, if the relationship

between the litigant and the person whose right he seeks to
assert is close, courts will often allow the litigant to proceed
with the suit.

Id. (“Furthermore, the relationship between the

litigant and the third party may be such that the former is
fully, or very nearly, as effective a proponent of the right as
the latter.”) (citing Griswold v. Connecticut, 381 U.S. 479
(1965) (holding that a licensed physician had standing to assert
the privacy rights of the married persons he advised)).

Second,

courts look to whether the third party can assert his own right.
“If there is some genuine obstacle to such assertion, however,
the third party’s absence from court loses its tendency that his
right is not truly at stake, or truly important to him, and the
party who is in court becomes by default the right’s best
available proponent.”

Singleton, 428 U.S. at 116 (citing NAACP

v. Alabama, 357 U.S. 449 (1958) (holding NAACP, in resisting a
court order that it divulge the names of its members, could
assert the First and Fourteenth Amendments rights of those
members to remain anonymous)).
Here, THS argues that Humanist service members
29

“‘enjoyment of the right’ to religious accommodation by Humanist
chaplains ‘is inextricably bound up with the activity [THS]
wishes to pursue,’ namely, endorsing Humanist chaplains to serve
in the Navy.”

(Pls.’ Opp’n at 24.)

However, neither exception

to the rule against third party standing applies to allow THS to
bring claims on behalf of Humanist service members who are not
members of THS.

First, THS and the service members it names –

Petty Offier Todd Kregel (“Kregel”) and Commander Antonio McCabe
(“McCabe”) do not enjoy the kind of close relationship like
plaintiffs cited in Singleton who were allowed to bring claims
on behalf of third parties.

THS and McCabe and Kregel do not

enjoy a confidential relationship like that of doctor and
patient.

See Singleton, 428 U.S. at 115 (citing cases).

Nor

could THS be considered an advocate for McCabe and Kregel, as,
by THS’s own admission, they are not even members of THS.

See

Singelton, 428 U.S. at 115 (citing Eisenstadt v. Baird, 405 U.S.
438, 445-46, as stressing the advocate relationship and impact
of the litigation on the third party interests).

Second, THS

argues that McCabe and Kregel may be chilled from asserting
their rights by the publicity of a court suit and thus might not
bring their own lawsuits for fear of retaliation, negative
publicity, or hostile treatment from fellow officers and
superiors.

(Pls.’ Opp’n at 24.)

named in this suit.

However, both are publicly

Thus, the Court is not convinced that there
30

are significant obstacles preventing McCabe and Kregel from
bringing their own lawsuits challenging the lack of Humanist
chaplains in the Navy.

Accordingly, THS does not have standing

to assert the rights of third parties.
Ultimately, the Court finds that THS does not have
standing under any of the aforementioned theories.

Accordingly,

the Court will grant Defendants’ motion in this regard.
2. Whether THS’s Claims are Ripe
Defendants challenge whether THS’s claims are ripe.
(Official Defs.’ Mem. in Supp. at 25.)

Ripeness is a subset of

justiciability and is drawn from Article III’s limitations on
judicial power and prudential reasons for declining to exercise
jurisdiction.

See Miller v. Brown, 462 F.3d 312, 319 (4th Cir.

2006) (citation omitted) (noting that analyzing ripeness is
similar to determining whether a party has standing).

Claims

are ripe when “the issue is substantively definitive enough to
be fit for judicial decision and whether hardship will result
from withholding court consideration.”

Bryant Woods Inn, Inc.

v. Howard Cnty., Md., 124 F.3d 597, 602 (4th Cir. 1997); see
also Miller, 462 F.3d at 318-19 (citation and internal quotation
marks omitted) (“The doctrine of ripeness prevents judicial
consideration of issues until a controversy is presented in
clean-cut and concrete form.”).

Its purpose is to prevent

premature adjudication of issues not yet ready for review.
31

To

determine whether a case is ripe, courts balance “the fitness of
the issues for judicial decision with the hardship to the
parties of withholding court consideration.”

Miller, 462 F.3d

at 319 (citation and internal quotation marks omitted).

“A case

is fit for judicial decision when the issues are purely legal
and when the action in controversy is final and not dependent on
future uncertainties.
marks omitted).

Id. (citation and internal quotation

The burden of proving ripeness falls on the

party bringing suit.

Id. (citing Renne v. Geary, 501 U.S. 312,

316 (1991)).
THS claims that the AFCB discriminated against THS by
allegedly refusing to recognize THS as a qualified endorser
because of its Humanist beliefs.

(Am. Compl. ¶ 198.)

Defendants argue that the AFCB never considered THS’s
application to become a qualified endorser because Dr. Heap’s
application was denied and thus no action was taken on its
application.

(Official Defs.’ Mem. in Supp. at 27.)

As noted

earlier, the AFCB administratively accepted THS’s application.
However, nowhere in the complaint is it alleged that the AFCB
undertook a merits review of THS’s application.

According to

DoDI 1304.28, such a review could not occur until Dr. Heap had
been deemed qualified by the Navy.

Since the Navy rejected Dr.

Heap’s application, the AFCB never had occasion to consider
whether THS is a qualified ecclesiastical endorser.
32

Therefore,

THS’s claim is not ripe.

See Nat’l Park Hospitality Ass’n v.

Dep’t of the Interior, 538 U.S. 803, 807-08 (2003) (stating
ripeness “protect[s] the agencies from judicial interference
until an administrative decision has been formalized and its
effects felt in a concrete way by the challenging parties.”).
To summarize, THS does not have organizational
standing to bring claims on its own behalf because it has not
shown sufficient injury.

Even if the Court were to find such

organizational standing, THS’s claim still fails on these facts
because its claim is not ripe, as the AFCB never adjudicated the
merits of its ecclesiastical endorser application.
THS also lacks associational standing.

It has not

shown that it is a membership organization or functional
equivalent.

Finally, THS lacks third party standing to bring

claims on behalf of non-members.

Accordingly, THS will be

dismissed from this lawsuit.
B. Deficiency of Claims
Defendants challenge whether several of Dr. Heap’s
claims are legally sufficient.

The Court addresses each in

turn.
1. Religious Freedom Restoration Act
The Religious Freedom Restoration Act (“RFRA”)
prohibits “Government from substantially burdening a person’s
exercise of religion, even if that burden results from a rule of
33

general applicability” unless the Government “demonstrates that
application of the burden to the person (1) is in furtherance of
a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental
interest.”

42 U.S.C. § 2000bb-1(a)-(b).

Thus, RFRA allows

courts to strike down neutral laws of general applicability when
they are a substantial burden to religious exercise and the
government cannot meet its burden to show a compelling interest
achieved by the least restrictive means.

Here, Defendants

challenge whether Dr. Heap’s free exercise rights under RFRA
have been substantially burdened when the Navy denied Heap’s
application to the Navy chaplaincy.

(Official Defs.’ Mem. in

Supp. at 29.)
A substantial burden requires “‘substantial pressure
on an adherent to modify his behavior and to violate his
beliefs.’”

Liberty Univ., Inc. v. Lew, 733 F.3d 72, 99-100 (4th

Cir. 2013) (citing Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,
450 U.S. 707, 718 (1981)).

Under RFRA, Dr. Heap bears the

burden of proving that the Navy’s policy implicates his
religious exercise.
(2015).8

See Holt v. Hobbs, 135 S. Ct. 853, 862

In Holt, the Supreme Court held that a prison

regulation that prevented a prisoner form growing a beard in
8

Though Holt concerned the Religious Land Use and
Institutionalized Persons Act (“RLIUPA”), RLIUPA mirrors RFRA
and embodies the same standards. Holt, 135 S. Ct. at 861.
34

accordance with his Muslim faith burdened his free exercise
rights under the Religious Land Use and Institutionalized
Persons Act (“RLIUPA”).

Id. at 862.

And in Burwell v. Hobby

Lobby Stores, Inc., the Supreme Court held that regulations
promulgated under the Patient Protection and Affordable Care Act
substantially burdened the religious exercise of three closelyheld corporations by mandating that they provide health
insurance coverage for contraception, which violated their
sincerely held religious beliefs against contraception and
abortion.

134 S. Ct. 2751, 2759 (2014).
Here, Dr. Heap has not shown that becoming a Humanist

Navy chaplain is dictated by the tenets of Humanism or that by
not becoming a Navy chaplain he is somehow in violation of the
tenets of Humanism.

Rejecting Heap from the Navy chaplaincy

does not put substantial pressure on Dr. Heap to modify his
behavior and violate his beliefs.

Therefore, there has been no

substantial burden of Dr. Heap’s religious exercise.
Dr. Heap’s argument appears to be premised on the
belief that Dr. Heap could become a chaplain only if he
affiliates with an AFCB-approved religion.
213.)

(See Am. Compl. ¶

Though the Court must construe the allegations in the

complaint as true in ruling on a motion to dismiss, this
assertion strikes the Court as wholly speculative, even assuming
that the Navy intentionally discriminated against Dr. Heap.
35

If

Dr. Heap did claim to be affiliated with an already established
AFCB-approved religion, it is possible the Navy would still
reject his application because he did not meet other criteria.
While serving as a Navy chaplain is no doubt important
to Dr. Heap, Dr. Heap has not demonstrated that being a Navy
chaplain is part of the core belief system of Humanism. (See Am.
Compl. ¶¶ 129-161.)9

Accordingly, Dr. Heap’s RFRA claim will be

dismissed.10
2. Free Exercise Claim
The Free Exercise Clause provides that “Congress shall
make no law ... prohibiting the free exercise” of religion.
U.S. Const. amend. I.

However, the Clause does not compel

9

An alternative means of practicing religion is a relevant
consideration when considering free exercise claims. But such
“alternative avenues” are not properly considered in analyzing
RFRA claims, since the statute provides greater protection than
that required by the Constitution. See Holt, 135 S. Ct. at 862
(“Under those cases, the availability of alternative means of
practicing religion is a relevant consideration, but RLUIPA
provides greater protection. RLUIPA's “substantial burden”
inquiry asks whether the government has substantially burdened
religious exercise . . . not whether the RLUIPA claimant is able
to engage in other forms of religious exercise.”). Therefore,
Official Defendants’ arguments concerning alternative avenues of
worship are not relevant to determining whether Dr. Heap has
stated a claim under RFRA. (See Official Defs.’ Mem. in Supp.
at 29-30.)
10
Since there has been no substantial burden on religious
exercise, the Court need not apply RFRA’s strict scrutiny
framework. See Goodall by Goodall v. Stafford Cnty. Sch. Bd.,
60 F.3d 168, 171 (4th Cir. 1995) (“[I]f the [plaintiffs] cannot
show that their exercise of religion is substantially burdened
by the [government's] policy, the [government] is not required
to come forth with proof of its interest.”).
36

Congress to exempt religious practices from a “valid and neutral
law of general applicability.”

Emp't Div., Dep't of Human Res.,

Or. v. Smith, 494 U.S. 872, 879 (1990) (internal quotation marks
omitted).

This is so even if such a law “has the incidental

effect of burdening a particular religious practice.”

Church of

the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
531 (1993).

“A neutral law of general applicability thus does

not violate the Free Exercise Clause.”

Liberty University, 733

F.3d at 99.
Dr. Heap conceded that his free exercise claim does
not challenge the regulations promulgated by the Navy as
facially discriminatory.

(Pls.’ Opp’n at 40 n.23.)

Nor has Dr.

Heap alleged that though the regulations are facially neutral,
they were enacted with the specific purpose of excluding
Humanists from the Navy chaplaincy.

Id.; see Church of the

Lukumi Babalu Aye, 508 U.S. at 540.

Dr. Heap’s claim that there

was a policy of discrimination against Humanists in the Navy
chaplaincy is therefore not cognizable under the Free Exercise
Clause, and accordingly this claim will be dismissed.
3. First Amendment Claim
Official Defendants argue Dr. Heap’s freedom of
expression claims fail because Defendants have not acted in any
way to restrict Dr. Heap’s expression and chaplain candidates
have no right to be provided with a platform to express their
37

Humanist views as Navy chaplains.
Supp. at 32.)

(Official Defs.’ Mem. in

Dr. Heap argues the Armed Forces chaplaincy

programs, including the Navy, are a forum designated for
religious exercise and expression.

(Pls.’ Opp’n at 48.)

Excluding Dr. Heap from the chaplaincy because he is a Humanist,
therefore, amounts to denying Dr. Heap access to a designated
public forum because of the viewpoint of his speech in violation
of the First Amendment.

(Id. at 48-51.)

The Navy Chaplain Corps is comprised of “commissioned
Naval officers who possess specialized education, training, and
experience to meet the spiritual needs of those who serve in the
Navy and their families.”

Adair v. England, 183 F. Supp. 2d 31,

35 (D.D.C. 2002) (citation and internal quotation marks
omitted).

The purposes of the Navy chaplaincy include “caring

for all service members, facilitating the religious requirements
of personnel of all faiths, [and] providing religious
organization-specific ministries[.]”

(Am. Compl. ¶ 252); see

also Katcoff v. Marsh, 755 F.2d 223, 226 (2d Cir. 1985) (“The
primary function of the military chaplain is to engage in
activities designed to meet the needs of a pluralistic military
society.”).

The Navy Chaplain Corps was created by statute as

“a staff corps of the Navy.”

10 U.S.C. § 5142.

Thus, the

appropriate conceptualization of the Navy Chaplain Corps is not
as a “forum”, a place where speech may occur on government
38

property,11 see Christian Legal Society v. Martinez, 561 U.S.
661, 669 n.11 (2010), but rather as a position for employment
with the U.S. government.

On this view, Dr. Heap has no

constitutionally-protected right to be hired to engage in
specific kinds of speech or associative activity.

Therefore,

Plaintiffs’ freedom of expression claim must fail.12

11

To be clear, in carrying out its mission Navy chaplains engage
in speech and other expressive activity. But this does not
automatically transform the Navy Chaplain Corps into a
designated or limited public forum under the Supreme Court’s
forum analysis. See Bryant v. Sec’y of the Army, 862 F. Supp.
574, 582 (D.D.C. 1994) (“Furthermore, the fact that the
‘letters-to-the-editor’ column [in military newspapers] is
specifically used for the communication of information and ideas
does not require a finding by the Court that it is necessarily a
public forum.”) (citations and internal quotation marks
omitted).
12
Assuming, arguendo, that forum analysis does apply, the
chaplaincy either would be a limited public forum or a nonpublic forum.
A limited public forum opens property “limited
to use by certain groups or dedicated solely to the discussion
of certain subjects.” Christian Legal Society, 561 U.S. at 669
n.11. In such a forum, “a governmental entity may impose
restrictions on speech that are reasonable and viewpointneutral.” Id. Here, establishing objective criteria as to
qualifications for chaplain candidates is reasonable. The
criteria are viewpoint-neutral as they do not single out any
kind of speech for exclusion from the forum, nor is there any
evidence that the Navy excluded Dr. Heap because of any
particular speech or expressive conduct.
However, it is more likely that the Chaplain Corps
would be considered a nonpublic forum. In rejecting plaintiff’s
contention that Army created a limited public forum in
establishing civilian enterprise newspapers (“CENs”) or letters
to the editor feature therein, the district court in Bryant v.
Secretary of the Army held that the function of the CENs was to
“further the objectives of the command installation.” Bryant,
862 F. Supp. 574, 582 (D.D.C. 1994). Here, the Chaplain Corps’
purpose is to provide spiritual guidance to Navy service members
in furtherance of the Navy’s mission. Therefore, the Chaplain
39

The parties dispute whether Garcetti v. Ceballos
applies to this case.

In Garcetti, the Supreme Court held that

“when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.”
U.S. 410, 421 (2006).

Garcetti, 547

Defendants argue that since the speech of

a current employee is not protected by the First Amendment when
the speech owes its existence to the employee’s official duties,
it follows that an applicant for employment does not have
freedoms of speech or association rights to be hired to engage
in the speech of his choice.
34.)

(Official Defs.’ Mem. in Supp. at

Dr. Heap argues that the Fourth Circuit has held that

Garcetti does not apply to speech that is a special concern of
the First Amendment, even when it is part of the speaker’s
official duties to speak on the subject.

See Adams v. Trustees

of the Univ. of N.C.-Wilmington, 640 F.3d 550, 563-64 (4th Cir.
Corps is best understood as a non-public forum. Cf. Muir v.
Ala. Educ. Television Comm’n, 688 F.2d 1033, 1042 (5th Cir.
1982) (“In the cases in which a public facility has been deemed
a public forum the speakers have been found to have a right of
access because they were attempting to use the facility in a
manner fully consistent with the pattern of usual activity and
the general invitation extended.”). “The reasonableness of the
Government’s restriction of access to a nonpublic forum must be
assessed in the light of the purposes of the forum and all the
surrounding circumstances.” Cornelius v. NAACP Legal Defense &
Educ. Fund, Inc., 473 U.S. 788, 809 (1985). As noted earlier,
the chaplain candidate qualifications are reasonable in light of
the purpose of the Chaplain Corps.
40

2011) (noting that Garcetti left open the question of whether it
applied to teaching and scholarship and declining to apply
Garcetti in a case involving a professor’s challenge to denial
of tenure).

Where, as here, the speech concerns a core First

Amendment concern - the free exercise of religion - Dr. Heap
argues Garcetti should not apply.

(Pls.’ Opp’n at 49-50 (citing

Brown v. Polk Cnty., Iowa, 61 F.3d 650, 658 (8th Cir. 1995) (en
banc) (holding that religious speech of county employee was at
the core of the First Amendment and therefore county employee
had a right to speak on the topic without reprisal from employer
under Pickering v. Bd. of Educ., 391 U.S. 563 (1968))).)
Assuming (as both parties do) that a job candidate for
public employment is properly considered an employee for First
Amendment purposes, Garcetti applies here.

As Official

Defendants note, chaplains speak on religious matters only as
part of their official military duties.

It is impossible to

separate a chaplain’s official duties from speech on religion,
and adopting a rule that would remove religious speech of Navy
chaplains from the Navy’s control would eviscerate Garcetti.
Accordingly, Dr. Heap has no First Amendment protections as an
applicant for the chaplaincy.
To the extent that Dr. Heap’s claim is that he was
retaliated against because of his speech, the claim still fails.
While Dr. Heap has shown that he engaged in a protected
41

activity, speech, and that he suffered adverse action from
Defendants, namely, the denial of his application, he cannot
show a causal link between the two.

See Coleman v. Md. Court of

Appeals, 626 F.3d 187, 190 (4th Cir. 2010).

Stated differently,

Dr. Heap cannot point to any particular speech or conduct that
was the impetus for denying Dr. Heap’s application.

Therefore,

Dr. Heap has not sufficiently stated a speech retaliation claim.
The Court also rejects Dr. Heap’s contention that
denying Dr. Heap access to the Chaplain Corps operates as a
prior restraint.

First, as a practical matter, accepting such

an argument could mean that every disappointed applicant for a
federal, state, or local job could argue that the refusal to
hire suppressed the applicant’s future speech as an employee.
This cannot be countenanced.

Second, as a matter of law,

rejecting someone from a job does not qualify as a prior
restraint on speech as that term is understood.

“The term prior

restraint is used to describe administrative and judicial orders
forbidding certain communications when issued in advance of the
time that such communications are to occur.”

Alexander v.

United States, 509 U.S. 544, 550 (1993) (emphasis in original)
(citation and internal quotation marks omitted).

Here, Dr. Heap

has not been forbidden from expressing his Humanist views merely
because his application for the chaplaincy was denied.

Rather,

Dr. Heap simply cannot express his Humanist views as a Navy
42

chaplain.

Such an outcome does not operate as a complete ban on

expression sufficient to warrant the label of prior restraint.
For similar reasons, the Court rejects Dr. Heap’s
claim that Dr. Heap has a right to associate with others as a
Navy chaplain.

Dr. Heap has made no showing that he is

prevented from associating with other Humanists or with
Humanists in the Navy.

Dr. Heap is merely prevented from

associating with others as a chaplain in the Navy.

See City of

Dallas v. Stanglin, 490 U.S. 19, 20-21 (1989) (rejecting
associational challenge to ordinance that limited ability of
adults to gain access to teenage dance halls).

Nor has Dr. Heap

pointed to anything about the policy as written that singles out
Humanists and punishes Dr. Heap for being a member.

See

Elfbrandt v. Russell, 384 U.S. 11, 18 (1966) (declaring
unconstitutional a state’s loyalty oath and law that prohibited
anyone from holding office if they were a member of a group like
the Communist party).

Therefore, Dr. Heap’s associational

claims also fail.
4. No Religious Test Clause Claim
Official Defendants argue Dr. Heap has failed to state
a claim under the No Religious Test Clause of Article VI of the
Constitution.

Dr. Heap contends that the ecclesiastical

endorsement requirements of DoDI 1304.28, facially and as
applied to Dr. Heap, conditions employment in a federal office
43

on a declaration of affiliation with a religious organization
and gives preferential treatment to religious organizations that
have been approved by the AFCB.

(Pls.’ Opp’n at 51-52.)

Article VI of the Constitution provides “no religious
test shall ever be required as a qualification to any office or
public trust under the United States.”

In Torcaso v. Watkins,

the Supreme Court struck down a provision of the Maryland
constitution which mandated a belief in the existence of God in
order to hold a public office.

367 U.S. 488, 489-90 (1961).

“We repeat and again affirm that neither a State nor the Federal
Government can constitutionally force a person to profess a
belief or disbelief in any religion.”

Id. at 495 (internal

quotation marks omitted).
As noted, the purpose of the Chaplain Corps is to aid
in the spiritual ministry of service members.

The chaplaincy

program itself does not run afoul of the Establishment Clause.
See Katcoff, 755 F.2d at 231-32 (“Since the program meets the
requirement of voluntariness by leaving the practice of religion
solely to the individual soldier, who is free to worship or not
as he chooses without fear of any discipline or stigma, it might
be viewed as not proscribed by the Establishment Clause.
Indeed, if the Army prevented soldiers from worshipping in their
own communities by removing them to areas where religious
leaders of their persuasion and facilities were not available it
44

could be accused of violating the Establishment Clause unless it
provided them with a chaplaincy since its conduct would amount
to inhibiting religion.”).

The chaplaincy program itself has

withstood constitutional challenge, and it follows that ensuring
that chaplains can do the job they were hired to do within that
program is also constitutionally sound.
The Statement of Ecclesiastical Endorsement asks the
endorsing organization (through a qualified agent) to verify
that the candidate is credentialed and qualified for an
appointment within the military chaplaincy.

(See Statement of

Ecclesiastical Endorsement,
http://www.dtic.mil/whs/directives/forms/eforms/dd2088.pdf.)13
Requiring chaplain candidates to be endorsed by an
ecclesiastical organization does not run afoul of the No
Religious Test Clause.

Without such an endorsement, the Navy

would have to entangle itself in the difficult decision of
deciding whether a particular candidate was qualified to provide
ministry to his or her identified faith group.

On the other

hand, requiring such an endorsement leaves it to the
ecclesiastical organization itself to determine whether a

13

Because Form 2088 is referenced in the Amended Complaint and
is integral to it, it is properly before the Court in
considering the motion to dismiss. See Witthohn, 164 F. App’x
at 396.
45

particular candidate fits the mold of its faith tradition.
Therefore, the policy does not run afoul of the clause.
Furthermore, the policy generally and as applied here
did not require Dr. Heap to profess his belief in any particular
group.

While an ecclesiastical organization may condition its

endorsement on a belief in the tenets of that particular
religion, the form itself did not require Dr. Heap to declare
his belief in any religion or the ecclesiastical organization to
verify such a belief.

It simply asks whether, in the opinion of

the ecclesiastical organization, the candidate is fit to carry
out the spiritual mission of that particular faith.

Therefore,

Plaintiffs’ claim under the No Religious Test Clause fails.
Dr. Heap also claims that the requirement of an
endorsing organization gives preferential treatment to religious
organizations that have been approved by the AFCB and that this
preferential treatment runs afoul of the clause.
at 52.)
claim.

(Pls.’ Opp’n

This argument strikes the Court as an equal protection
Nevertheless, this contention would not be sufficient to

state a claim under the No Religious Test Clause.

While

affiliation with an ecclesiastical organization already approved
by the AFCB would make a chaplain candidate’s application
process easier, nowhere is it required that a chaplain candidate
must affiliate with one of these approved organizations in order
to become a chaplain.

Therefore, Dr. Heap has failed to state a
46

claim under the No Religious Test clause, and as such the claim
will be dismissed.
C. Official Defendants’ Motion for Summary Judgment on
Equal Protection/Substantive Due Process and
Establishment Clause Claims
The Official Defendants have moved for summary
judgment on the Equal Protection/Substantive Due Process and
Establishment Clause claims.

The Official Defendants argue

there is no basis to infer that there is an unwritten policy of
discrimination against Humanists based on the decision not to
select one Humanist chaplain for discrimination.

(Official

Defs.’ Mem. in Supp. at 37.)
In general, summary judgment should only be granted
“after adequate time for discovery.”
U.S. at 322.

See Celotex Corp., 477

“Summary judgment before discovery forces the non-

moving party into a fencing match without a sword or mask.”
McCray v. Md. Dep't of Transp., Md. Transit Admin., 741 F.3d
480, 483 (4th Cir. 2014).

For this reason, when a party lacks

material facts necessary to combat a summary judgment motion, he
may file an “affidavit or declaration that, for specified
reasons, [the party] cannot present facts essential to justify
its opposition.”

Fed. R. Civ. P. 56(d).

In response, the

district court may defer consideration of the summary judgment
motion, deny the motion, or “issue any other appropriate order.”
Id.
47

A Rule 56(d) motion must be granted “where the
nonmoving party has not had the opportunity to discover
information that is essential to his opposition.”

Harrods Ltd.

v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir.
2002) (quoting Anderson, 477 U.S. at 250 n.5).

Furthermore,

such motions are “broadly favored and should be liberally
granted” in order to protect non-moving parties from premature
summary judgment motions.

Greater Balt. Ctr. for Pregnancy

Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 264,
281 (4th Cir. 2013).

The Court will deny the motion for summary

judgment on these claims as premature.14

Nothing precludes

Official Defendants from re-filing for summary judgment after
the close of discovery.
D. Individual Defendants’ Motion to Dismiss
The Individual Defendants have moved to dismiss the
claims against them.

First, they argue that Dr. Heap’s Bivens

claim fails because special factors counselling hesitation
foreclose the creation of the remedy here.
Mem. in Supp. [Dkt. 40] at 10-24.)

(Individual Defs.’

Should the Court recognize a

Bivens remedy, the Individual Defendants maintain they are
entitled to qualified immunity.

(Id. at 24-35.)

14

The parties are advised that this is not an invitation to
conduct expansive or unnecessary discovery.
48

1. Bivens Remedy
The only viable claim remaining against the
Individual Defendants is the claim for relief under Bivens, as
the Court dismissed the RFRA claim as legally insufficient
because there was no substantial burden to religious practice.15
Dr. Heap seeks a damage award from the Individual Defendants in
their individual capacities for Dr. Heap’s constitutional
rights.

In Bivens v. Six Unnamed Agents of Federal Bureau of

Narcotics, the Supreme Court held that “violation of [the Fourth
Amendment] by a federal agent acting under color of his
authority gives rise to a cause of action for damages” against
that agent individually, despite the absence of any federal
statute creating liability.

403 U.S. 388, 389 (1971).

The

Court explained that even without explicit congressional
authorization for a monetary remedy at law, “[t]he very essence
of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he
receives an injury.”

Id. at 397.

Though couched in seemingly

broad terms, the Court “place an important qualifier on the
availability of an implied right of action against a government

15

Even if the RFRA claim could be understood to have adequately
alleged a substantial burden to religion, Individual Defendants
are entitled to qualified immunity for the reasons discussed in
Section III.D.2, infra. In so holding, the Court assumes,
without deciding, that RFRA authorizes damages suits against
officers in their individual capacities.
49

official, foreshadowing the extremely narrow reach established
in post-Bivens cases.”
(4th Cir. 2013).

Cioca v. Rumsfeld, 720 F.3d 505, 508

The Court limited a Bivens remedy by stating

that “[Bivens] involves no special factors counselling
hesitation in the absence of affirmative action by Congress.”
Bivens, 403 U.S. at 396.

As the Court explained in Bush v.

Lucas, “[t]he special factors counselling hesitation in the
creation of a new remedy relate[] to the question of who should
decide whether such a remedy should be provided,” rather than
“the merits of the particular remedy that was sought.”

462 U.S.

367, 380 (1983).
The Fourth Circuit has recently considered the basis
and application of Bivens in the military setting in Lebron v.
Rumsfeld and Cioca v. Rumsfeld.

In Lebron, the Fourth Circuit

held that “special factors counseled hesitation in implying
causes of action for enemy combatants held in military
detention.”

Lebron, 670 F.3d 540, 548 (4th Cir. 2012).

Thus,

the Fourth Circuit upheld the district court’s denial of a
Bivens remedy for Jose Padilla (“Padilla”), who sued the
Secretary of Defense and a number of former high-level civilian
policy-makers at DoD for legal and equitable relief stemming
from his military detention as an enemy combatant.

Id. at 543.

In Cioca, the Fourth Circuit upheld this Court’s dismissal of a
complaint brought by twenty-eight current and former members of
50

the United States Armed Forces, alleging that the acts and
omissions of two former Secretaries of Defense in their official
and individual capacities contributed to a military culture of
tolerance for sexual crimes perpetrated against the plaintiffs.
Cioca, 720 F.3d at 506.

The Fourth Circuit recognized the

Supreme Court's strict limits on a Bivens proceeding exist in
part because “‘the Supreme Court has long counselled restraint
in implying new remedies at law.’” Cioca, 720 F.3d at 509
(quoting Lebron, 670 F.3d at 547.)

“Such restraint counsels

that we review a plaintiff's “invitation to imply a Bivens
action . . .

with skepticism.”

Id. (quoting Lebron, 670 F.3d

at 548).
Abstention from creating a new Bivens remedy “is, at
its essence, a function of the separation of powers under the
Constitution which delegates authority over military affairs to
Congress and to the President as Commander in Chief.
contemplates no comparable role for the judiciary.”

It
Cioca, 720

F.3d at 509 (citing Lebron, 670 F.3d at 548); see also Chappell,
462 U.S. at 301 (stating the “Constitution contemplated that the
Legislative Branch has plenary control over rights, duties, and
responsibilities in the framework of the military establishment,
including regulations, procedures, and remedies.”).
As a consequence of the Constitution's specific
delineation of the powers allotted among the branches of
51

government in military affairs, “whenever the Supreme Court has
considered a Bivens case involving the military, it has
concluded that “‘the insistence . . . with which the
Constitution confers authority over the Army, Navy, and militia
upon the political branches . . . counsels hesitation in our
creation of damages remedies in this field.’” Cioca, 720 F.3d at
509-10 (quoting United States v. Stanley, 483 U.S. 669, 682
(1987)). “Put simply, ‘[a Bivens remedy] would be plainly
inconsistent with Congress' authority’ in military affairs.”
Id. at 510 (quoting Chappell, 462 U.S. at 304).
In the more than forty years since deciding Bivens,
the Supreme Court has only twice recognized a new implied
monetary remedy against federal officials, and it has never done
so in the military context.

Id.

Thus, it is “clear that an

expansion of a Bivens-based cause of action . . . is the
exception, not the rule.”

Id.

Against this backdrop, this

Court declines to create a Bivens remedy to allow Plaintiffs to
recover damages against individual Naval officers.
Dr. Heap argues that the military context is not a
special factor counseling hesitation here because Dr. Heap was
not in the military at the time his application was rejected.
(Pls.’ Opp’n at 54.)

Instead, Plaintiffs urge the Court to

follow the “incident to service” test developed in Feres v.
United States, 340 U.S. 135 (1950).
52

(Id. at 54-55.)

Feres held

that “the Government is not liable under the Federal Tort Claims
Act for injuries to servicemen where the injuries arise out of
or are in the course of activity incident to service.”
146.

Id. at

Thus, the incident to service test, as it has become

known, does not permit damages for injuries to service members
arising out of or in the course of activity incident to military
service.
In Chappell, the Supreme Court drew on Feres in
finding a Bivens remedy unavailable for plaintiffs, enlisted
sailors, who alleged that certain Naval officers engaged in
racial discrimination against them.

“Here, as in Feres, we must

be concerned with the disruption of the peculiar and special
relationship of the soldier to his superiors that might result
if the soldier were allowed to hale his superiors into court.”
462 U.S. at 304 (citation and internal quotation marks omitted).
Four years later, in Stanley, the Supreme Court reaffirmed its
holding in Chappell in denying a Bivens remedy for a former
service member who alleged he was the involuntary victim of Army
LSD experiments during his military service.
at 671-72.

Stanley, 483 U.S.

The Stanley Court emphasized the importance of the

“incident to service” test insofar as it minimized the “degree
of disruption” that a judicial inquiry would create:
A test for liability that depends on the
extent to which particular suits would call
into
question
military
discipline
and
53

decisionmaking would itself require judicial
inquiry into, and hence intrusion upon,
military matters. Whether a case implicates
those concerns would often be problematic,
raising
the
prospect
of
compelled
depositions and trial testimony by military
officers concerning the details of their
military commands.
Even putting aside the
risk
of
erroneous
judicial
conclusions
(which
would
becloud
military
decisionmaking),
the
mere
process
of
arriving
at
correct
conclusions
would
disrupt the military regime.
The “incident
to service” test, by contrast, provides a
line that is relatively clear and that can
be discerned with less extensive inquiry
into military matters.
Id. at 682-83.
Important distinctions must be made between the
instant case and Feres.

First, judicial second-guessing an

individual Naval officer’s decision to accept or reject Dr.
Heap’s application is the very type of intrusion into military
decisionmaking that Stanley feared.

Cf. Jackson v. Tate, 648

F.3d 729, 730 (9th Cir. 2011) (holding Feres does not apply to
bar plaintiff’s Bivens remedy on claim that National Guard
recruiters forged his signature to fraudulently reenlist him).
Second, and importantly, the Fourth Circuit has rejected the
formalistic separation between military and non-military
plaintiffs where there are serious concerns about
administrability of claims.

In Lebron, Padilla argued that

Stanley and Chappell did not apply to him because he was a
civilian, not a member of the armed forces.
54

Lebron, 670 F.3d at

554.

The Fourth Circuit rejected this argument.

“[Padilla’s

argument] misconceives the nature of the special factors
analysis.

The source of hesitation is the nature of the suit

and the consequences flowing from it, not just the identity of
the plaintiff.”

Id. (emphasis added).

Permitting a Bivens

remedy here would force the Court “to pass judgment on the
merits of the [Individual] Defendants’ military decisions, which
the Supreme Court has concluded is not within the realm of [the]
judicial branch function.”

Cioca, 720 F.3d at 515.

The Fourth Circuit has considered whether a candidate
for military employment may bring a Bivens claim when the
application was rejected.

In Middlebrooks v. Leavitt, the

plaintiff applied to nursing positions at the National
Institutes of Health (“NIH”) and sought to be hired as a member
of the Public Health Services Commissioned Corps (“PHSCC”), one
of the seven uniformed services of the military.
342 (4th Cir. 2008).

525 F.3d 341,

The Fourth Circuit remanded for a

determination of whether her application was better
characterized as an application to NIH or an application for the
PHSCC.

Id. at 348-49.

“[S]hould the district court determine

that Middlebrooks' application is best characterized as one to
the PHSCC, then, because we believe that the statutory scheme
evinces congressional intent to align the PHSCC with the armed
forces, and members of the armed forces would lack a Bivens
55

remedy for discrimination claims arising out of military
employment, Middlebrooks also would have no Bivens remedy
against NIH officials.”

Id. at 350.

Applying Middlebrooks, Dr.

Heap has no Bivens remedy, even as an applicant to the Navy.16
Individual Defendants also raise three other “special
factors counselling hesitation” – the First Amendment, the
Administrative Procedure Act (“APA”), and the context of federal
employment.

Turning first to the First Amendment, the Supreme

Court has never held that Bivens extends to the full range of
First Amendment claims.

See Reichle v. Howard, 132 S. Ct. 2088,

2093 n.4 (2012) (“We have never held that Bivens extends to
First Amendment claims.”).17

In Ashcroft v. Iqbal, the Court

recognized that it had never found an implied damages remedy
under the Free Exercise Clause.

556 U.S. 662, 675 (2009).

However, the Court assumed, without deciding, that such a claim
was actionable because petitioners did not make that argument on
appeal and it was not relevant to determining the ultimate issue

16

This does not meant that this Court cannot determine whether
there have been constitutional violations. As the Supreme Court
noted in Stanley, suits to halt or prevent constitutional
violations are appropriate, as “[s]uch suits . . . [seek]
traditional forms of relief, and [do] not ask the Court to imply
a new kind of cause of action.” Stanley, U.S. at 683 (citation
and internal quotation marks omitted).
17
In the context of speech claims, Bivens remedies are sometimes
viable, depending on the facts. See Hartman v. Moore, 547 U.S.
250, 252, 256 (2006) (finding Bivens remedy where officials
induced a prosecution in retaliation for speech but finding that
lack of probable cause must be pled and proven).
56

in the case.

Id. at 666, 675 (holding pleadings insufficient to

state a claim for relief).
Dr. Heap cites to several cases where district courts
have found a Bivens remedy available for Establishment Clause
and Free Exercise claims.

See Am. Humanist Ass’n v. United

States, No. 3:14–cv–00565–HA, 2014 WL 5500495, at *7 (D. Or.
Oct. 30, 2014); but see Turkmen v. Ashcroft, 915 F.Supp.2d 314
(E.D.N.Y. 2013) (finding a Bivens remedy for free exercise
claims against Bureau of Prisons officials), rev’d sub nom.
Turkmen v. Hasty,

--- F.3d ---, Nos. 13–981, 13–999, 13–1002,

13–1003, 13–1662,

2015 WL 3756331, at *12-13 (2d Cir. June 17,

2015).

As the Second Circuit recognized in Turkmen,

“Plaintiffs' free exercise claim would require extending Bivens
to a new context, a move we decline to make absent guidance from
the Supreme Court.”

See also Iqbal, 556 U.S. at 675 (“Because

implied causes of action are disfavored, the Court has been
reluctant to extend Bivens liability to any new context or
category of defendants.”) (citations and internal quotation
marks omitted).

Given the strong presumption against creation

of a new Bivens remedy, absent specific guidance to the
contrary, the Court declines to create a new Bivens remedy for
violations of the Establishment Clause.
Turning to the federal employment context, Individual
Defendants argue that the exemption of both applicants and
57

members of the uniformed armed services from Title VII
implicitly forecloses a Bivens remedy because such exclusion was
a deliberate act by Congress to exclude a damages remedy against
an official in his or her individual capacity.
Defs.’ Mem. in Supp. at 18.)

(Individual

Title VII outlaws discrimination

in employment based on race and waives sovereign immunity with
respect to claims for “personnel actions affecting employees or
applicants for employment . . . in military departments . . .
[and] in executive agencies . . . .”

42 U.S.C. § 2000e–16(a).

Numerous appellate courts, including the Fourth Circuit, have
concluded that uniformed members of the armed services do not
constitute “employees . . . in military departments” and so do
not fall within the scope of sovereign immunity contained in §
2000e-16(a).

Middlebrooks, 525 F.3d at 344 (citing Randall v.

United States, 95 F.3d 339, 343 (4th Cir. 1996) (holding that
“Congress intended [in § 2000e–16] to include only civilian
employees of the military departments, and not uniformed service
members, within the reach of Title VII.”)).

Courts have also

concluded that Congress did not intended § 2000e-16(a)’s waiver
of immunity to encompass applicants for enlistment in the
uniformed armed services and therefore have held that applicants
may not bring Title VII claims.

Middlebrooks, 525 F.3d at 344

(citation omitted).

58

As the Fourth Circuit has noted, the legislative
history of § 2000e-16(a) suggests that, in passing the amendment
to Title VII that added this subsection, Congress intended §
2000e-16 to reach only federal employees in the civil service
and competitive service who were, at that time, under the
authority of the Civil Service Commission.

Id. at 346-47.

The

uniformed services, including the Navy, are explicitly exempted
from the operation of the civil service laws.

5 U.S.C. § 2101.

Thus, the military’s exclusion from Title VII’s coverage can be
read to be Congressional disapproval of a money damages remedy
against individual military officers.

Therefore, the exclusion

of applicants and members of the Armed Forces from Title VII
cautions this Court against creating a Bivens remedy here.

See

Zimbelman v. Savage, 228 F.3d 367, 370 (4th Cir. 2000)
(declining to find a Bivens remedy for civilian Air Force
employees who were excluded from the Civil Service Reform Act
(“CSRA”), noting that such exclusion did not release the
plaintiffs from the CSRA’s exclusive remedial framework, and
citing cases from Ninth, Tenth, Eleventh and D.C. Circuits
rejecting efforts of federal employees who lack a CSRA remedy to
bring a Bivens action).
Dr. Heap relies on Davis v. Passman for the
proposition that the Individual Defendants’ argument – the
exclusion of the military from Title VII’s protection implicitly
59

forecloses Bivens relief – has been explicitly rejected.
Plaintiff Shirley Davis was a deputy administrative assistant to
Congressman Otto Passman and alleged that she suffered
discrimination on the basis of her sex.
(1979).

442 U.S. 228, 230-31

In finding a damages remedy appropriate, the Supreme

Court relied in part on the fact that there was no explicit
congressional declaration that persons in Davis’s position may
not recover damages; in amending Title VII, Congress failed to
extend the statute’s protection to congressional employees like
Davis.

Id. at 246-47.

But such exclusion did not mean that

other forms of relief were inappropriate, as the silence was not
proof of the “clearly discernible will of Congress” to preclude
any form of relief.

Id.

Davis, however, is distinguishable.

First, the Davis

court recognized that a suit against a congressman for
putatively unconstitutional actions taken in the course of his
official conduct did raise special concerns counselling
hesitation.

Id. at 246.

However, such concerns were

coextensive with the protections afforded by the Speech and
Debate Clause of the Constitution.

Id.

As Passman’s actions

were not shielded by the Speech and Debate Clause, monetary
relief should not be precluded either.

Id.

To hold otherwise

would grant members of Congress more immunity than the
Constitution intended.

Stanley, 483 U.S. at 685 (“That is to
60

say, the Framers addressed the special concerns in that field
through an immunity provision - and had they believed further
protection was necessary they would have expanded that immunity
provision.

It would therefore have distorted their plan to

achieve the same effect as more expansive immunity by the device
of denying a cause of action for injuries caused by Members of
Congress where the constitutionally prescribed immunity does not
apply.”).
Second, subsequent cases have recognized Davis’s
limited reach.

In Bush v. Lucas, the Supreme Court declined to

create a Bivens remedy for federal employees whose First
Amendment rights were violated by their superiors.

In so

holding, the Court assumed that the civil service remedies were
not as effective as an individual damages remedy and did not
fully compensate plaintiffs for harm suffered.
372 (1983).

462 U.S. 367,

The Court also assumed that Congress had neither

expressly authorized nor expressly precluded creation of a
Bivens remedy.

Id. at 372-73.

Though courts have the power to

grant relief that is not expressly authorized by statute, “such
power is to be exercised in the light of relevant policy
determinations made by Congress.”

Id. at 373.

Thus, the Court

declined to “create a new substantive legal liability without
legislative aid and as at the common law because we are
convinced that Congress is in a better position to decide
61

whether or not the public interest would be served by creating
it.”

Id. at 390 (citation and internal quotation marks

omitted); see also Schweiker v. Chilicky, 487 U.S. 412, 414
(1988) (stating where Congress has not seen fit to include a
damages remedy in an elaborate remedial scheme, such a remedy is
unavailable).

Taken together, Bush and Chilicky caution this

Court to be wary of creating Bivens remedies where Congress has
already legislated in that field yet was silent about a
particular factual scenario.

See Zimbelman, 228 F.3d at 370

(“But as Bush and Chilicky make clear, a Bivens remedy is
inappropriate where the ‘special factor’ of federal employment
exists.”).

Given that there are other opportunities for

potential relief, namely, a declaratory judgment stating that
the Navy and DoD’s current practices are unconstitutional, this
Court declines to take the extraordinary step of remedying Dr.
Heap’s alleged harms through a damages judgment.18

18

See Guardado

Individual Defendants also argue that the Administrative
Procedure Act (“APA”) is a special factor counselling hesitation
of the creation of a Bivens remedy. (Individual Defs.’ Mem. in
Supp. at 20-22.)
As the district court noted in Navab-Safavi,
“[t]he question here is whether the APA is a congressional
comprehensive system for purposes of applying special factors
analysis.” Navab-Safavi v. Broad. Bd. of Governors, 650 F.
Supp. 2d 40, 70 (D.D.C. 2009) (citing Spagnola v. Mathis, 859
F.2d 223, 228 (D.C. Cir. 1998) (en banc)). Because the APA
created no substantive rights but rather created procedural
mechanisms for enforcing such substantive rights, “[i]t
therefore cannot be said that the APA's solely procedural
provisions represent an ‘elaborate’ or ‘careful’ congressional
judgment about the type of relief that should be available for
62

v. United States, 744 F. Supp. 2d 482, 490 (E.D. Va. 2010)
(“There is no ‘automatic entitlement’ to a Bivens damages
remedy, however.”) (quoting Wilkie v. Robbins, 551 U.S. 537, 550
(2007)); cf. Navab-Safavi v. Broad. Bd. of Governors, 650 F.
Supp. 2d 40, 73-74 (D.D.C. 2009) (noting that there was no
specific statute addressing the quasi-employment relationship
between federal entities and personal services contractors like
the plaintiff and stating “the only viable relief” for plaintiff
would be backward-looking damages claims).
2. Qualified Immunity
In the alternative, Individual Defendants state that
they are entitled to qualified immunity.

First, they argue Dr.

Heap has failed to establish that any of the Individual
Defendants’ conduct violated any constitutional rights.
(Individual Defs.’ Mem. in Supp. at 25.)

Second, Individual

Defendants argue that at the time Dr. Heap’s application was
rejected, it was not clearly established that Humanism in
general, or the Humanism Dr. Heap and THS practice, are religion
within the meaning of the First Amendment.

(Id. at 31.)

specific substantive quasi-employment claims akin to those
governed by the CSRA.” Id. at 72. There is no controlling
guidance from the Fourth Circuit on this question. Therefore,
while the Court declines to find that the APA is a “special
factor” precluding Bivens relief, it is skeptical that such an
argument would be successful in light of the Navab-Safavi’s
reasoning on the issue.
63

Qualified immunity is available where a government
official performing discretionary functions “does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.”
457 U.S. 800, 818 (1982).

Harlow v. Fitzgerald,

The doctrine balances holding public

officials accountable for abuses of power with protecting them
from harassment, distraction, and liability in performing their
public duties.

Guardado, 744 F. Supp. 2d at 490 (citing Pearson

v. Callahan, 555 U.S. 223 (2009)).

Questions of qualified

immunity are resolved through a two-step inquiry: (1) whether
the facts alleged make out a violation of a constitutional right
and (2) whether the right at issue was “clearly established” at
the time of the alleged misconduct.

Id. (citing Saucier v.

Katz, 533 U.S. 194, 212-13 (2001)).
The Court turns first to whether Dr. Heap has alleged
violations of any constitutional rights.

“[A] plaintiff must

plead and prove that each Government-official defendant, through
the official’s own individual actions, has violated the
Constitution.”

Iqbal, 556 U.S. at 676; Trulock v. Freeh, 275

F.3d 391, 402 (4th Cir. 2001) (“[Bivens] liability is personal,
based upon each defendant’s own constitutional violations.”).
In order to state such a claim against an individual defendant,
Dr. Heap “must plead sufficient factual matter to show that
[each of the defendants acted] . . . not for a neutral . . .
64

reason but for the purpose of discriminating [against him] on
account of race, religion, or national origin.”

Iqbal, 556 U.S.

at 676.
Dr. Heap alleges that Defendants Kibben, Stendahl,
Gard, Horn, Rutherford, Baily, Page and Wright withheld
recognition of THS as a qualified ecclesiastical endorser of
chaplaincy candidates because of THS’s Humanist beliefs.
Compl. ¶¶ 29-30, 33-38.)

(Am.

As noted earlier, THS lacks standing

to assert a claim for relief for denial of its application.

Dr.

Heap makes no allegations that any of these defendants
personally took any action on his application to be a chaplain.
Therefore, Dr. Heap’s allegations do not establish that these
defendants engaged in any religious discrimination against him.19
As to the remaining three individual defendants, Dr.
Heap alleges that Defendants Moran, Andrews, and Tidd made a
determination to deny his application to the Navy chaplaincy
because of Dr. Heap’s Humanist beliefs.

19

(Am. Compl. ¶¶ 21, 22,

Dr. Heap alleges that Defendant Kibben, as Navy Chief of
Chaplains, denied his application to the chaplaincy for
discriminatory reasons. (Am. Compl. ¶¶ 23, 33.) Rear Admiral
Kibben assumed her position as Navy Chief of Chaplains on August
1, 2014. (Id. ¶ 23.) Therefore, she was not Chief of Chaplains
at the time Dr. Heap’s application was before the CARE Board and
had no authority to approve or disapprove any recommendation by
the CARE Board as to Dr. Heap’s application. Secretary of the
Navy Instruction (“SECNAVINST”) 5351.1 ¶ 5.c. Therefore, any
comments she may have made about Humanism, see Am. Compl. ¶ 8,
are not relevant to determining whether she personally
discriminated against Dr. Heap’s application.
65

24.)

Beyond pointing to isolated statements of some of these

Individual Defendants,20 Dr. Heap makes no showing that
Defendants Tidd, Moran, and Andrews were motivated by any
personal animus toward Humanism in denying his application.

In

fact, Dr. Heap’s allegations state that these three Individual
Defendants denied his application because of the Navy’s “policy
and practice” of discrimination against Humanists.
¶¶ 21, 22, 24.)

(Am. Compl.

As noted, whatever alleged animus that the Navy

or other persons had toward Humanism cannot be imputed to these
Individual Defendants.

See Iqbal, 556 U.S. at 676.

Therefore,

allegations about the Navy’s policies surrounding lay leaders,
Congressional reaction over Dr. Heap’s application, or

20

In ¶ 91 of the Amended Complaint, Dr. Heap alleges that a
subordinate officer wrote to Rear Admiral Tidd, telling Rear
Admiral Tidd he had “received a little intelligence on the
humanist so called [sic] applicant to our Corps.” According to
Dr. Heap, rather than reprimanding the subordinate for “his
obvious bias” against Dr. Heap by calling him a “humanist so
called applicant,” Rear Admiral Tidd thanked the officer for his
work. As noted in the Amended Complaint, the officer reported
he was unable to find evidence that Dr. Heap had been ordained a
minister of the Disciples of Christ; however, Dr. Heap had never
claimed to be an ordained minister of that denomination.
Additionally, in ¶ 64, Dr. Heap alleges that public
comments by Rear Admiral Tidd reveal that “a belief in a god is
not merely an attribute of some religious views in the Navy
Chaplain Corps, but . . . a prerequisite for service as a Navy
Chaplain.” (emphasis in original). However, Dr. Heap makes no
allegation linking that public comment to the denial of his
application beyond the conclusion that because Dr. Heap does not
profess a belief in a god, and Rear Admiral Tidd’s comments
seemed to indicate such a belief was required to be a Navy
chaplain, then Dr. Heap’s application must have been denied
because of his lack of a belief in a god.
66

statements made by an unnamed Navy officer not part of this
lawsuit are not sufficient to state a constitutional violation
against these Individual Defendants.
Dr. Heap also fails to circumstantially allege some
kind of personal animus on the part of Defendants Tidd, Moran,
and Andrews.

Dr. Heap alleges that the Lt. DeGraeve told Dr.

Heap that “he would attempt to fast-track the application so Dr.
Heap could appear before a [CARE Board] the following month, in
July 2013, or August 2013 at the latest.”

(Am. Compl. ¶ 75.)

Dr. Heap argues that this is proof of discriminatory intent,
since the Navy first learned he was a Humanist after this
conversation and he was not invited to attend a CARE Board in
the summer of 2013.

Additionally, Dr. Heap argues that when he

finally was invited to the CARE Board, the board only filled
three of four available spots.

(Am. Compl. ¶ 99.)

And in the

three months that followed his appearance in front of the board,
the Navy accepted two non-Humanist candidates who had “similar
qualifications” under the applicable criteria.
106.)

(Am. Compl. ¶

This is not enough to state a plausible claim of

discrimination against Tidd, Moran, and Andrews as individuals.21
As the Individual Defendants note, there are no allegations

21

The Court takes no position at this time as to whether these
allegations are sufficient to state claims under the
Establishment or Equal Protection clauses as to the Official
Defendants.
67

about Dr. Heap’s interview with the CARE Board other than it
occurred.

(See Am. Compl. ¶ 95.)

Dr. Heap does not allege that

there was any conversation about Humanism or his Humanist
beliefs during his interview.

He makes no allegation that

anyone associated with the chaplaincy application process made
any anti-Humanist comments or displayed any bias toward
Humanism.

Thus, Dr. Heap has failed to survive the first prong

of the qualified immunity analysis as he has not sufficiently
alleged constitutional violations.
As to whether Individual Defendants violated any
clearly established rights, Dr. Heap cites to a lone footnote in
the Supreme Court’s Torcaso decision in which the court declares
“Secular Humanism” as a religion.

Thus, Dr. Heap contends that

Humanism is a religion as that term is legally defined and cites
case law discussing that footnote.

(Pls.’ Opp’n at 65-66.)

In

the alternative, Dr. Heap argues that even if the Court were to
disagree, holding instead that Humanism does not fall within the
legally prescribed definition of religion, the Individual
Defendants were on notice that their conduct violated clearly
established rights because the Establishment Clause requires
that the government treat religious belief and non-belief
equally.

(Id. at 70.)
To guide the analysis of whether a right is clearly

established, the Fourth Circuit has stated that the Court may
68

“rely upon cases of controlling authority in the jurisdiction in
question, or a ‘consensus of cases of persuasive authority such
that a reasonable officer could not have believed that his
actions were lawful.’”

Rogers v. Pendleton, 249 F.3d 279, 287-

88 (4th Cir. 2001) (quoting Wilson v. Layne, 526 U.S. 603, 617
(1999)).
While a consensus of cases of persuasive
authority may clearly establish a right for
qualified immunity purposes, the inverse is
also true: if there are no cases of
controlling authority in the jurisdiction in
question, and if other appellate federal
courts have split on the question of whether
an asserted right exists, the right cannot
be
clearly
established
for
qualified
immunity purposes.
Id. at 287-88.
In Torcaso, the Supreme Court struck down part of the
Maryland constitution requiring notaries to take an oath
affirming a belief in God.

“Neither [the federal or state

government] can constitutionally pass laws or impose
requirements which aid all religions as against non-believers,
and neither can aid those religions based on a belief in the
existence of God as against those religions founded on different
beliefs.”

Torcaso, 367 U.S. at 495.

To this statement, which

signified that “religion” did not necessarily entail a belief in
God, the Court appended a footnote.

That footnote lists

“religions in this country which do not teach what would

69

generally be considered a belief in the existence of God,” among
them, Secular Humanism.

Id. at 495 n.11.

The Fourth Circuit has not interpreted this footnote
nor considered whether Humanism is a religion within the First
Amendment.22

In Kalka v. Hawk, the D.C. Circuit held that prison

officials did not violate clearly established rights when they
refused to let a prisoner form Humanist groups within the
prison’s religious services program.
2000).

215 F.3d 90, 91 (D.C. Cir.

In finding that there was no precedent declaring

Humanism to be a religion, the D.C. Circuit rejected a broad
reading of the Torcaso footnote.

“The Court's statement in

Torcaso does not stand for the proposition that humanism [sic],
no matter in what form and no matter how practiced, amounts to a
religion under the First Amendment.
22

The Court offered no test

Dr. Heap argues Humanism is a religion under Fourth Circuit
case law, citing Dettmer v. Landon in support. In Dettmar, the
Fourth Circuit concluded Wicca is a religion under the First
Amendment based on several factors like adherence to doctrines
that concern ultimate questions of human life and doctrinal
teachings parallel to those of more conventional religions. 799
F.2d 929, 931-32 (4th Cir. 1986). Dr. Heap argues that like
Wicca, Humanism meets these factors, and therefore it is clearly
established that Humanism is a religion for First Amendment
purposes. While Humanism may satisfy the factors laid out in
Dettmer, the Fourth Circuit did not hold that Humanism was a
religion in that case nor did it even mention Humanism in its
holding. See McCullough v. Wyandanch Union Free Sch. Dist., 187
F.3d 272, 278 (2d Cir. 1999) (“The question is not what a lawyer
would learn or intuit from researching case law, but what a
reasonable person in the defendant’s position should know about
the constitutionality of the conduct.”). Therefore, Dettmer
does not clearly establish that Humanism is a religion for First
Amendment purposes.
70

for determining what system of beliefs qualified as a ‘religion’
under the First Amendment.”

Id. at 99; see also McGinley v.

Houston, 361 F.3d 1328, 1332 (11th Cir. 2004) (“Moreover,
neither the Supreme Court nor this court has determined that
secular humanism [sic] is a religion for purposes of the
establishment clause.”) (citation and internal quotation marks
omitted).
In contrast, the Seventh Circuit has held that
Humanism is entitled to protection under the Establishment
Clause.

Ctr. for Inquiry Inc. v. Marion Circuit Court Clerk,

758 F.3d 869, 873-75 (7th Cir. 2014).

The Seventh Circuit

placed greater weight on the Supreme Court’s footnote in Torcaso
and implied that Humanism was a secular belief system that holds
the same place in adherents’ lives as traditional religion.

Id.

at 873 (“And although both the text and note 11 in Torcaso might
be characterized as dictum, we held in Kaufman v. McCaughtry,
419 F.3d 678 (7th Cir. 2005), that, when making accommodations
in prisons, states must treat atheism as favorably as theistic
religion.

What is true of atheism is equally true of humanism,

and as true in daily life as in prison.”).

The Seventh Circuit

reversed the lower court’s holding that Indiana’s marriage
solemnization law, which allowed only certain categories of
persons or entities to solemnize marriages, did not violate the
Establishment Clause of the First Amendment.
71

In its opinion,

the district court declined to read Kaufman and Torcaso as
controlling as to the status of Humanism under the First
Amendment.

Ctr. for Inquiry, Inc. v. Clerk, Marion Circuit

Court, No. 1:12-CV-00623-SEB, 2012 WL 5997721, at *7 (S.D. Ind.
Nov. 30, 2012) (“We disagree with Plaintiffs' summation of First
Amendment jurisprudence for purposes of resolving the issues
before us.

As a preliminary matter, we find inapposite

Plaintiffs' avowal that, ‘for this purpose[,] [plaintiff] must
be considered to be analogous to a religion[.]’”); cf. Am.
Humanist Ass’n, 63 F. Supp. 3d at 1283 (stating that Humanism is
a religion for Establishment Clause purposes while noting that
Ninth Circuit case law had suggested, but not affirmatively
decided, the same).
To paraphrase the Supreme Court in Wilson, if judges
disagree on a constitutional question, it is unfair to subject
federal officials to money damages for picking the losing side
of the controversy.

526 U.S. at 618.

While many lower courts

have read the footnote in Torcaso as controlling on the question
of whether Humanism is a religion,23 the interpretation of one

23

Newdow v. U.S. Cong., 313 F.3d 500, 504 n.2 (9th Cir. 2002);
Chess v. Widmar, 635 F.2d 1310, 1318 n.10 (8th Cir. 1990);
Greater Houston Chapter of the ACLU v. Eckels, 589 F. Supp. 222,
239 n.20 (S.D. Tex. 1984); Crockett v. Sorenson, 568 F. Supp.
1422, 1425 (W.D. Va. 1983). Dr. Heap cites Howard v. United
States, 864 F. Supp. 1019, 1022 (D. Colo. 1994) as a case in
support of his argument that Humanism is recognized as a
religion under the First Amendment. However, the inmate in
72

footnote in a Supreme Court case is not the type of definitive
pronouncement that places the constitutional question “beyond
debate.”

Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011).

And

though it may be the case that going forward Humanism is a
religion for First Amendment purposes, such a conclusion could
not be said to be well established at the time of the events in
question here.
Dr. Heap argues that even if it is not wellestablished that Humanism is a religion for First Amendment
purposes, case law clearly establishes that federal officials
cannot discriminate between belief and non-belief.

In support,

Dr. Heap cites United States v. Seeger, 380 U.S. 163, 165-66
(1965), and Welsh v. United States, 398 U.S. 333 (1970), for the
proposition that belief in divinity is not a required element of
“religion.”

(Pls.’ Opp’n at 65.)

As Dr. Heap notes, Seeger and

Welsh involved interpretation of a draft-exemption statute
rather than the First Amendment.

The Supreme Court interpreted

the statutory language “in relation to a Supreme Being” to
include belief “which occupies in the life of its possessor a
place parallel to that filled by the God” of other traditional
religions, but to exclude “essentially political, sociological,
Howard was a self-proclaimed Satanist who believed in a
“humanist ethical system.” Id. at 1020. As the Court believes
the practices of the inmate in Howard and Dr. Heap are distinct,
it does not read Howard to stand for establishing Humanism as
practiced here as a religion.
73

or philosophical views.”

Seeger, 380 U.S. at 176.

Assuming

that Seeger does apply, it was not clearly established at the
time of the events in question that Humanism as practiced by Dr.
Heap meets that definition.

While Dr. Heap states that Humanism

“is a secular moral system equivalent to religion,” he cites no
legal authority that has pronounced that statement.
Opp’n at 70.)

(Pls.’

While the Court does not deny that Humanism could

indeed be a secular moral system equivalent to religion, the
inquiry at this stage is whether that proposition was widely
accepted by courts such that a reasonable officer would be on
notice that Humanism stands on equal footing to religious
belief.

Whether Humanism is protected under the Constitution

either as a religion or as an equivalent belief system was not
“clearly established.”

Therefore, Individual Defendants are

entitled to qualified immunity.24

24

To the extent that Counts One and Seven seek equitable relief
against the Individual Defendants, such relief is inappropriate.
“Qualified immunity prevents an award of back or front pay
against the officers in their individual capacities.” Kirby v.
City of Elizabeth City, N.C., 388 F.3d 440, 452 n.10 (4th Cir.
2004). The remaining equitable relief sought can only be
awarded against the Individual Defendants in their official
capacities. Id.; see also Dugan v. Rank, 372 U.S. 609, 620
(1963) (“The general rule is that a suit is against the
sovereign if . . . the effect of the judgment would be to
restrain the Government from acting, or to compel it to act.”)
(citation and internal quotation marks omitted).
74

IV. Conclusion
For the foregoing reasons, the Court will grant the
Individual Defendants’ Motion to Dismiss and will grant in part
and deny in part the Official Defendants’ Motion to Dismiss.
Since THS has no organizational or associational standing and
its claim is not ripe, it will be dismissed from the case.

The

Individual Defendants will also be dismissed from the case
because the Court declines to create a new Bivens remedy, or, in
the alternative, the Individual Defendants are entitled to
qualified immunity should such a remedy exist.

The Court will

dismiss the RFRA, Free Exercise, No Religious Test, and First
Amendment claims (Counts One, Three, Five, and Six).

The

Official Defendants’ motion for summary judgment on the
Establishment Clause and Equal Protection and Substantive Due
Process claims (Counts Two and Four) will be denied.

An

appropriate order shall issue.

July 1, 2015
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

75