In Re: Navy Chaplaincy ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
IN RE: NAVY CHAPLAINCY ) Case No. 1:07-mc-269 (GK)
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MEMORANDUM OPINION
Plaintiffs, 65 current and former nonliturgical Protestant
chaplains in the United States Navy, their endorsing agencies,
and a fellowship of non-denominational Christian evangelical
churches ("PlaintiffS'") , bring this consolidated action against
the Department of the Navy and several of its officials
("Defendants") . Plaintiffs allege that Defendants discriminated
against non-liturgical Protestant chaplains on the basis of
religion, maintained a culture of denominational favoritism in
the Navy, and infringed on their free exercise and free speech
rights.
This matter is before the Court on Plaintiffs' Motion for
Class Certification [Dkt. No. 147] . Upon consideration of the
Motion, Opposition [Dkt. No. 156] , Reply [Dkt. No. 160] , Sur-
Reply [Dkt. No. 170], Sur-Sur-Reply [Dkt. No. 178], and the
entire record herein, and for the reasons set forth below,
Plaintiffs' Motion shall be denied.
1
I . BACKGROUND
A. The Navy Chaplain Corps
The Navy employs a corps of chaplains ("Chaplain Corps" or
"CHC") to meet the religious needs of its members. Chaplains
provide religious education, counseling, and support to sailors
and Marines and advise commanders on religious, moral, and
ethical issues. In re England, 3 75 F.3d 1169, 1171 (D.C. Cir.
2004) (citations omitted). The role of a chaplain "within the
service is 'unique,' involving simultaneous service as clergy or
a 'professional representative[]' of a particular religious
denomination and as a commissioned naval officer." Id.
(citations omitted) To serve these dual roles, chaplains must
have a graduate level theology degree or equivalent, meet the
physical and educational requirements applicable to all
commissioned officers, and be endorsed by an endorsing agency as
qualified to represent a particular faith group. Id. at 1171-
72.
There are over 100 faith groups recognized by the
Department of Defense, which the Navy has grouped into four
"faith group categories" for purposes of organizing the Chaplain
Corps: Roman Catholic, Liturgical Protestant, Non-liturgical
1
The Court assumes familiarity with the extensive record of the
case, which includes more than twenty written decisions by this
Court and the Court of Appeals.
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Protestant, and Special Worship. In re Navy Chaplaincy, 697
F.3d 1171, 1173 (D.C. Cir. 2012) ("In re Navy Chaplaincy I").
The Liturgical Protestant category consists of Protestant
denominations that trace their origins to the Protestant
Reformation, practice infant baptism, and follow a prescribed
liturgy; it includes Lutheran, Episcopal, Methodist, and
Presbyterian faiths. In re England, 375 F.3d at 1172;
Consolidated Complaint ("Consol. Compl.") ~ 6(b) [Dkt. No. 134].
The Non-liturgical Protestant category is composed of Protestant
denominations that baptize at the "age of reason" and do not
follow a formal liturgy; it includes Baptist, Evangelical,
Pentecostal, Bible Church, and Charismatic faiths. In re
England, 375 F.3d at 1172; Consol. Compl. ~ 6(c). The Special
Worship category encompasses all denominations not covered by
the other categories; it includes Jewish, Hindu, Buddhist,
Muslim, Jehovah's Witness, Christian Science, Mormon, and
Unitarian faiths. Chaplaincy of Full Gospel Churches v.
England, 454 F.3d 290, 295 n.3 (D.C. Cir. 2006); Consol. Compl.
~ 6 n.5.
In order to maintain the requisite number of chaplains for
all ranks (what the Navy refers to as "authorized end
strength"), the Chaplain Corps creates an annual "accessions
plan" setting forth the number of officers it can bring on
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active duty that fiscal year. Declaration of Captain Gene P.
Theriot, CHC, USN ("Theriot Decl . " ) ~ 2 [Dkt . No. 2 9- 6] ; see
also SECNAVINST 1120.4A(5). The term "accession" refers to the
process of bringing a qualified individual into the Chaplain
Corps as a commissioned officer. Theriot Decl. ~ 2. Chaplain
Corps accessions are drawn primarily from the civilian
population, but also from the reserve community, Chaplain
Candidate Program, and inter-service transfers. Id.; see also
Consol. Compl. ~ 44(c).
Chaplain applications are reviewed by a "Chaplain
Appointment Recall and Eligibility Advisory Group" or what is
commonly referred to as a "CARE" board. Theriot Decl. ~ 3. The
CARE board reviews chaplain applications and recommends certain
applicants to the Chief of Chaplains, "giving particular
consideration to: the existence of an ecclesiastical
endorsement, academic performance, graduate theological
education, professional ministry experience, professional
reputation and deportment, interview results and letters of
personal or professional recommendation." Id. After
considering the CARE board's recommendations, the Chief of
Chaplains forwards his or her recommendations for accession to
the Commander of the Navy Recruiting Command or the Chief of
Naval Personnel for final approval/disapproval. Id.
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After accession, chaplains are subject to the same
personnel system as other naval officers and, like other
officers, are required to be promoted in rank at regular
intervals. In re England, 375 F.3d at 1172 (citing 10 U.S.C. §
611 (a)) . If a chaplain is considered but not selected for
promotion to the next higher rank, he or she is said to have
"failed of selection." Chaplaincy of Full Gospel Churches, 454
F.3d at 293. Two or more failures of selection subject the
chaplain to the risk of involuntary separation, known as
"selective early retirement." See 10 U.S.C. § 632 (a)- (b). The
Navy may, however, elect to continue a chaplain on active duty
despite two or more failures of selection if, in its judgment,
the needs of the Navy so require. See id. § 632(c) (2).
Each of these decisions regarding a chaplain's career
promotion, selective early retirement, and continuation on
active duty - is made by a selection board composed of officers
superior in rank to the person under consideration. 2 In re
England, 375 F.3d at 1172. The selection board process is
governed by statute and regulations prescribed by the Secretary
of Defense. See 10 U.S.C. §§ 611, 612. Under the current
2
Selection board rules and processes differ according to the
rank and type of personnel decision under consideration. See
generally 10 U.S.C. §§ 611, 612. Unless otherwise stated, the
Court uses the term "selection board" to refer generically to
all boards convened for the purpose of considering a change to a
naval officer's employment status.
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regulations, chaplain selection boards are composed of seven
members, two of whom are chaplains "nominated without regard to
religious affiliation." In re Navy Chaplaincy, 738 F.3d 425,
427 (D.C. Cir. 2013) ("In re Navy Chaplaincy I I I") (citing
SECNAVINST 1401.3A, Encl. (1), ~ l.c. (1) (f)) "Either the Chief
of Chaplains or one of his two deputies serves as selection
board president." Id.
B. Plaintiffs' Claims
Plaintiffs are 65 current and former Non-liturgical
Protestant chaplains who have collectively served in more than
fifty different naval command stations worldwide during the past
four decades, 3 their endorsing agencies, and a fellowship of non-
denominational Christian evangelical churches. They allege that
"the Navy has violated their constitutional and statutory rights
by establishing a pervasive culture of hostility, animosity and
prejudice towards themselves and their class" manifested by: (1)
"a pattern of religious preferences favoring Liturgical
Christian chaplains over Non-liturgical Christian chaplains";
( 2) "procedures that allow and encourage denominational
preferences in the award and denial of government benefits"; and
3
Among other locations, Plaintiffs served in Florida, Italy,
Japan, Guam, South Carolina, North Carolina, Wisconsin,
Virginia, California, Iraq, Lebanon, Georgia, Texas, Maryland,
Washington, the District of Columbia, Texas, New York, Saudi
Arabia, the Aleutian Islands, and Somalia. See generally
Consol. Compl., Addendum A [Dkt. No. 134].
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( 3) "hostility toward Non-liturgical religious speech and
worship practices." Mot. at 5.
They contend that a statistical examination by their
expert, Dr. Harald R. Leuba, Ph.D., demonstrates that "[e]very
dimension of personnel management which can be illuminated with
data shows that Non-liturgical chaplains are disadvantaged by
the CHC' [s] policies and practices of religious preference [.]"
Consol. Compl. ~ 42.
Plaintiffs' Consolidated Complaint and accompanying
"Addendum" collectively exceed 200 pages and contain sixteen
separate counts, many of which are not conceptually or legally
distinct. For purposes of this Motion, it is sufficient to
divide their claims into three overarching categories, as
follows. 4
First, they attack a number of facially neutral personnel
practices, both current and historical, which they believe have
allowed religious bias to infect selection board outcomes and
led to discriminatory personnel decisions. Specifically, they
challenge: (1) the small size of selection boards; (2) the
placement of two chaplains on each board, one of whom is either
4
The Court limits its discussion to the factual and legal
contentions at issue in this Motion and, in so doing, analyzes
Plaintiffs' claims according to the type of alleged violation,
rather than the particular numerical scheme in the Consolidated
Complaint.
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the Chief of Chaplains or one of his or her deputies; and ( 3)
the use of "secret voting" procedures in which board members
anonymously indicate their degree of confidence in a candidate,
a process Plaintiffs contend "enables each board's chaplains to
ensure that a particular candidate will not be promoted, thus
increasing the odds for their preferred (and discriminatory)
results." In re Navy Chaplaincy III, 738 F.3d at 428; see also
Consol. Compl. ~ 95(c).
Plaintiffs also take issue with the fact that until 2002,
"each selection candidate's three-digit 'faith group identifier'
code was prominently displayed throughout the selection
board process[,]" which they claim had no purpose other than "to
identify a candidate's faith group to the board" for purposes of
permitting the chaplain board members "to exercise their
individual or faith group prejudice . , particularly against
Non-liturgical chaplains." Consol. Compl. `` 86-87.
Second, Plaintiffs assert that, until 2001, the Navy used
religious quotas or "goals" for apportioning chaplain
opportunities among the faith group categories. Consol. Compl.
`` 33-35. In particular, they claim that between 1986 and 2001,
the Navy had a so-called "Thirds Policy" under which it reserved
thirty-five percent of chaplain accessions to Liturgical
Protestants, thirty-five percent to "Non-liturgical faith
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groups," and thirty percent to "Others," including Catholics.
Consol. Compl. `` 33, 35, 43. They also claim that from 1977
until 2002, Defendants maintained a policy of reserving a set
number of selection board seats for Roman Catholic chaplains
(the so-called "2 RC" and "1 RC" policies), allegedly for the
purpose of "stacking" selection board proceedings in favor of
Roman Catholic and Liturgical Protestant chaplains despite their
declining numbers in the broader population. Consol . Compl .
`` 57 (e)- (g)
Third, in the "Addendum" to their Consolidated Complaint,
the individual chaplain Plaintiffs advance a laundry list of
fact-specific claims asserting equal protection and free
exercise violations they purportedly suffered while serving as
chaplains in the Navy. These consist of highly individualized
allegations that they were, at different points in time and in
different command centers: (1) retaliated against, criticized,
transferred, or removed from their posts by superior officers
based on their faith or the content of their religious
teachings; (2) treated differently from Liturgical chaplains
with respect to disciplinary issues, promotion, retention,
selective early retirement, recall to active duty, fitness
reports, and/or employment benefits; (3) made to officiate at
Liturgical services; and (4) subjected to general policies that,
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while not facially discriminatory, disfavored certain aspects of
their worship traditions. See, e.g. , Consol. Compl. `` 17 8-
184 (kk) & Addendum A. 5 They claim that each of the practices,
policies, and procedures they challenge enabled or permitted
other chaplains to discriminate against them, thereby violating
their rights under the First and Fifth Amendments and the
Religious Freedom and Restoration Act ( "RFRA") , 42 U.S. C. §
2000bb, et seq. See generally Consol. Compl. `` 29-131, 141-
164.
Plaintiffs seek sweeping injunctive and declaratory relief
that would place this Court in an essentially perpetual
oversight role with respect to the Navy's personnel practices.
Such relief includes both individually-tailored remedies to
repair purported damage to each and every chaplain's career, as
well as what Plaintiffs refer to as "fundamental reform,"
requiring the Navy to adjust its hiring and retention policies
to match religious representation in the greater population.
Mot. at 38. Their requested remedies include, but are not
limited to:
5
For example, Plaintiffs allege that some "senior chaplains have
insisted on rotating chaplains through . . services instead of
assigning a chaplain as a 'pastor' for a congregation,
reflecting the liturgical viewpoint that the liturgy satisfies
the congregation's worship need, rather than the Non-liturgical
view that good biblical preaching, music, and praise and worship
comprise the worship experience[.]" Consol. Compl. ~ 150(b).
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• A judicial declaration voiding "all personnel actions" made
regarding Navy chaplains of any denomination since 1977.
Consol. Compl. at 119.
• Reinstatement of separated Non-liturgical chaplains to
active duty "until such time as they have been reviewed by
legally constituted boards." Id. at 111.
• An order requiring the Navy to "correct the records and
remove the prejudice from the affected Non-liturgical
chaplain's official career file, take other necessary
actions to make plaintiffs whole, and take corrective
action to preclude further incidents of prejudice." Id. at
118.
• "Special compensation" for the named Plaintiffs "for the
expense, stress and hostility they have endured to bring
this action[.]" Id. at 120.
• An order invalidating all of the challenged personnel
policies and requiring the Navy to "[d]evelop new policies,
guidelines, and regulations that [,]" among other things,
"officially record the religious preference of all Navy
personnel"; "[e]nsure that [Non-liturgical] services
receive priority or become the main Christian service when
Non-liturgicals constitute a majority"; and adjust the
CHC's rank structure to reflect religious preference. Id.
at 117-19 (emphasis in original) . 6
• A court-ordered "system of checks and balances" monitoring
remedial efforts to ensure that consideration of religious
6
As other courts have noted, there is an inconsistency between
Plaintiffs' claim that the Navy is prohibited from considering
religion in its personnel decisions and their simultaneous
assertion that the Navy is constitutionally required to consider
religion in its personnel decisions by developing a system of
proportional representation. See Sturm v. U.S. Navy, No. 99-CV-
2272, slip op. at 7 (S.D. Cal. June 18, 2002) ("Sturm Mem. Op.
of June 18, 2002") (noting inconsistency between argument that
"the First Amendment does not permit the Government to
discriminate between denominations" and simultaneous demand
"that Non-liturgical Protestants be picked over Liturgical
Protestants and Roman Catholics because they purportedly satisfy
a higher percentage of service members' religious needs").
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considerations is "effectively eliminated" from promotions
and career processes, and that future "complaints of
religious discrimination are promptly investigated and
addressed." Id. at 117-18.
C. Defendants' Response to Plaintiffs' Claims
Defendants deny Plaintiffs' allegations in their entirety.
First, they deny that any of the alleged "quota" systems
(the so-called "Thirds," "1 RC" and "2 RC" Policies) ever
existed. They point out that the Navy's rules specifically
require promotion board members to "be nominated without regard
to religious affiliation" and prohibit "[e] xclusion from board
membership by reason of gender, race, ethnic origin, or
religious affiliation [.]" Defs.' Mot. for P. Summ. J. at 5
[Dkt. No. 46-1] (citations omitted) (citing SECNAVINST 1401.3 ~
4(a) & Encl. 1 ~ 1(c) (1) (e)). They point out further that the
Chaplain Corps' personnel policies and Guiding Principles, on
which chaplains receive yearly training, expressly prohibit
religious discrimination of any type and require that personnel
decisions be based on merit alone. Opp'n at 24 (citing
SECNAVINST 5350.16A 7) . In accordance with these
requirements, Defendants maintain that "[i] ndividual accession
decisions are made on the basis of qualifications alone" and
that the Navy has consistently endeavored to "access[] the best-
qualified candidates irrespective of faith group." Defs.' Mot.
for P. Summ. J. at 23, 24 (citations omitted).
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Second, Defendants claim that, consistent with its policy
of nondiscrimination, the Navy has enacted numerous safeguards
to prevent discrimination from infecting selection proceedings
and to "protect the rights of all to worship or not worship as
they choose." Opp'n at 24 (citing SECNAVINST 5351.1, encl. 4).
These safeguards include requiring selection board members to
"take an oath to perform [their] duties without prejudice or
partiality"; instructing them to "ensure that officers are not
disadvantaged because of religion"; and imposing on them a
duty to report any belief that board results have been tainted
by improper influence or bias. Opp' n at 2 4 & Ex. 6 (Jan. 2 3 ,
2013, Decl. of Commander Jeffrey J. Klinger, USN) ("Klinger
Decl.") •• 26, 27, 29, 59 [Dkt. No. 156-6]; see also Defs'. Mot.
for P. Summ. J. at 4 (citing 10 U.S.C. § 613).
Third, Defendants challenge the statistical findings of
Plaintiffs' expert, Dr. Leuba, in their entirety. See, e.g.,
Opp ' n at 2 0- 23 , 26 . 7 They assert that from 1988 until the
present, "Non-liturgicals have steadily grown to constitute the
largest of the four Faith Group Categories recognized by the
7
Defendants retained their own expert, Dr. Bernard R. Siskin,
Ph.D., whose analysis Plaintiffs have moved to strike under Fed.
R. Evid. 702 and 403. See Opp'n, Ex. 2 (Statistical Analysis of
Promotions and Early Retirement Selections in the United States
Navy Chaplain Corps, Supplemental Report) [Dkt. No. 156-2];
Pls.' Renewed Mot. to Strike [Dkt. No. 169]. The Court does not
rely on Dr. Siskin's report to resolve the pending Motion.
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Navy for Chaplain Corps personnel management purposes, recently
becoming the outright majority of all active duty Chaplains,
both overall and at every rank save Rear Admiral." Opp'n at 4.
They claim that "since FY 2002, Non-liturgicals have
accessed in greater numbers than any other faith group
category [,]" and now constitute 59. 9 percent of all Chaplain
Corps accessions, "compared to Liturgical Protestants at 2 6. 7
percent, Roman Catholics at 7. 2 percent, and Special Worship
candidates at 6.3 percent of all accessions, respectively."
Id.; see also Decl. of Veronica Berto dated May 20, 2011 ("May
20, 2011, Berto Decl."), Exhibit C [Dkt. No. 156-8]. Moreover,
they claim that this representation of Non-liturgical chaplains
exceeds "by a significant margin" the overall percentage of Navy
personnel that self-identify as belonging to a faith group
category within the Non-liturgical category." Opp' n · at 2 6- 2 7
(citing May 20, 2011, Berto Decl., Exs. A & B) . 8
Fourth and finally, and based on the foregoing, Defendants
argue that, "[a] t its heart, this consolidated litigation is
really a collection of individual employment disputes" . in which
8
Specifically, Defendants' analysis found that "Navy personnel
who self-identified as belonging to a faith group that would
fall within the Non-liturgical Faith Group Category constituted
only 13 percent of the Navy as of March 31, 2011[,]" whereas
"Non-liturgicals constituted 53 percent of the Chaplain Corps as
of FY 2010." Opp'n at 26-27 (citing May 20, 2011, Berto Decl.,
Exs. A & B).
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the proposed class members have only "two principal things in
common: (1) they belong to Christian faith groups categorized by
the Navy as Non-liturgical for personnel management purposes;
and (2) at some point, each sustained one or more adverse
personnel decisions, such as failure to promote to the next rank
or selection for early retirement." Defs.' P. Mot. to Dismiss
at 1 [Dkt. No. 2 9] 0 "Beyond that," Defendants argue,
Plaintiffs' "individual cases diverge in numerous ways,
depending on when and where they served, what their duties were,
to whom they reported and by whom they were supervised, and
multiple other factors." Id. at 1-2.
D. Procedural Background
This consolidated case is composed of three cases filed by
the same counsel: Chaplaincy of Full Gospel Churches v. England,
Civ. No. 99-2945 ("CFGC"); Adair v. England, Civ. No. 00-566
("Adair"); and Gibson v. Dep't of Navy, Civ. No. 06-1696
("Gibson"). CFGC and Adair were filed in this Court on November
5, 1999, and March 17, 2000, respectively, and were consolidated
for pretrial purposes on September 2 6, 2 0 0 0. [Adair Dkt. No.
21] 0 Gibson was filed in the Northern District of Florida on
April 28, 2006, and was subsequently transferred to this
District pursuant to 28 U.S.C. § 1404. See Mem. Order of August
17, 2006, at 1 [Gibson Dkt. No. 1]. On June 18, 2007, the Court
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consolidated all three actions, concluding that they raise
"substantially similar constitutional challenges to the Navy
Chaplaincy program." Mem. Order of June 18, 2007, at 4 [Dkt.
No. 11].
On March 26, 2002, the Adair Plaintiffs filed their first
Motion for Class Certification, which the Court granted on
August 19, 2002 [Dkt. No. 69]. See Adair v. England, 209 F.R.D.
5 (D.D.C. 2002). Four years later, the Adair Plaintiffs moved
to vacate the 2002 Class Certification Order, claiming that, as
a result of recent "job changes" and other personal
circumstances, "they [we]re no longer willing or able to
represent or to assume the burdens inherent in representing the
class." Pls.' Mot. to Vacate the Aug. 19, 2002, Order Granting
Pls.' Mot. to Certify a Class, at 2 [Adair Dkt. No. 156] . On
May 30, 2006, the Court granted this Motion.
The parties engaged in more than five years of active
discovery between 2002 and 2009, interspersed with collateral
litigation and three interlocutory appeals to our Court of
Appeals. In 2012, Judge Ricardo Urbina, who had been assigned
to this case, retired and it was reassigned to this Court. At
the Court's request, on October 3, 2012, Plaintiffs filed a
Consolidated Complaint [Dkt. No. 134] comprised of all of the
remaining claims at issue.
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On December 4, 2 012, Plaintiffs filed the instant renewed
Motion for Class Certification ("Mot.") [Dkt. No. 147]. On
January 23, 2013, Defendants filed their Opposition ("Opp'n")
[Dkt. No. 156] . On February 25, 2013, Plaintiffs filed their
Reply ("Reply") [Dkt. No. 160]. With permission of the Court,
on March 27, 2013, Defendants filed a Sur-Reply ("Sur-Reply")
[Dkt. No. 170], and on April 15, 2013, Plaintiffs also filed a
Sur-Reply ("Sur-Sur-Reply") [Dkt. No. 178].
II. Subject Matter Jurisdiction Over Plaintiffs' Challenge to
the "Thirds Policy"
Before reaching the class certification issue, the Court
must address a threshold issue left undecided in one of its
prior decisions: whether it has subject matter jurisdiction to
consider Plaintiffs' challenge to the alleged "Thirds Policy." 9
The parties dispute whether the Thirds Policy ever existed,
but it is undisputed that it has not existed since 2001. See
Consol. Compl. ~ 35(a)-(b); Pls.' Mot. for P. Summ. J. at 4-5
(policy was "abandoned" in 2001) [Dkt. No. 55] Our Court of
9
The Court has an affirmative duty to ensure that it is acting
within its jurisdictional limits and may raise the issue sua
sponte at any time. See Fed. R. Civ. P. 12 (h) (3) ("If the
[district] court determines at any time that it lacks subject-
matter jurisdiction, the court must dismiss the action."); Evans
v. Suter, No. 09-5242, 2010 WL 1632902, at *1 (D.C. Cir. Apr. 2,
2 010) ("[A] district court may dismiss sua sponte
when, as here, it is evident that the court lacks subject-matter
jurisdiction[.]").
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Appeals has therefore recognized that, "because the Navy already
eliminated the Thirds Policy," and there is no evidence "the
Navy will reinstitute it, any injunction or order declaring it
illegal would accomplish nothing - amounting to exactly the type
of advisory opinion Article III prohibits." Larsen v. U.S.
Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) ("Larsen I").
In 2008, Defendants moved to dismiss the Thirds Policy
claim, arguing that, under Larsen I, any prospective challenge
to the Policy is moot. See Defs.' P. Mot. to Dismiss at 21-22
[Dkt . No. 2 9 -1] . They also argued that Plaintiffs lack standing
to challenge the Policy because "each Plaintiff successfully
accessed into the Chaplain Corps" and therefore cannot show
"that the Navy's past or present accession policies caused them
any injury in fact, a requirement of standing." In re Navy
Chaplaincy, 850 F. Supp. 2d 86, 109 (D. D.C. 2012) ("In re Navy
Chaplaincy II") (citation and quotation marks omitted); see also
Defs.' P. Mot. to Dismiss at 19-22.
In response, Plaintiffs did not argue that they suffered a
direct injury as a result of the alleged Thirds Policy
(presumably because it is undisputed that they all successfully
accessed into the Chaplain Corps) , but asserted instead that the
Policy resulted in an underrepresentation of Non-liturgical
Protestants in the Chaplain Corps that limited their ability to
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meet their communities' religious needs and increased their
workload. See Pls.' Opp'n to Defs.' P. Mot. to Dismiss at 29-30
[Dkt . No. 3 3] .
In 2012, the Court addressed these arguments. With respect
to standing, it noted that Plaintiffs alleged that the Thirds
Policy had limited their ability to meet their communities'
religious needs and increased their workload. The Court
concluded that this "pleaded factual content, accepted as true,
allow [s] the court to draw the reasonable inference that the
plaintiff [s] suffered an injury in fact to support standing."
In re Navy Chaplaincy II, 850 F. Supp. 2d at 110. Given the
procedural pOsture of the case, however, the Court did not reach
whether Plaintiffs satisfied the other elements of standing.
Id. at 109-110 (quoting Sierra Club v. EPA, 292 F.3d 895, 898-99
(D.C. Cir. 2002)).
With respect to mootness, the Court noted that the Court of
Appeals panel in Larsen I had recently recalled its mandate due
to the discovery of new evidence allegedly suggesting the Navy
had reinstituted the Thirds Policy. Consequently, the Court
denied Defendants' mootness challenge "without prejudice" to
future consideration "after the court has ruled on the remanded
Larsen matter." Id. at 110 n.11.
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The district court in Larsen I has now ruled on the
mootness issue. It determined that the challenge to the Thirds
Policy remained moot because the newly presented evidence did
not "indicate that the Thirds Policy will likely be reenacted."
Larsen v. U.S. Navy, 887 F. Supp. 2d 247, 258 (D.D.C. 2012)
("Larsen II"). In this case, too, there is no evidence the Navy
will reinstate the alleged Thirds Policy. 1 ° Consequently, as in
Larsen I, any forward looking or declaratory relief that this
Court might grant with respect to the alleged Thirds Policy
would "accomplish nothing - amounting to exactly the type of
advisory opinion Article III prohibits." Larsen I, 525 F.3d at
4. Accordingly, Plaintiffs' claim for declaratory and forward-
looking injunctive relief related to the Thirds Policy is moot.
In light of this conclusion, Plaintiffs also cannot
demonstrate standing to challenge the Policy. They have
10
The evidence of the Thirds Policy consists largely of a single
memorandum from Captain D. K. Muchow to the Chief of Chaplains
regarding the annual accessions plan for FY 1987 (the "Muchow
Memorandum") [Dkt. No. 55-22]. The Muchow Memorandum states
that "[f]aith group mix best meets the needs of the naval
service when 35 percent of the Chaplain Corps inventory is
liturgical, 35 percent non-liturgical and 30 percent other
(Roman Catholic, Jewish, Orthodox)." Id. at 1. However, it
makes no reference whatsoever to the existence of any formal
Thirds Policy and there is no indication that Muchow's
assessment of optimal "faith group mix" reflected the views of
the CHC as a whole or pertained to accession goals for any year
other than FY 1987. At his deposition, Muchow characterized the
Memorandum as merely a "snapshot of where we were" in FY 1987.
See Dep. Tr. of Donald K. Muchow at 44:18 [Dkt. No. 47-15].
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previously argued that they suffered an Article III injury as a
result of the Thirds Policy because it limited their ability to
meet the religious needs of Non-liturgical service members and
increased their workload. Even assuming, however, that
Plaintiffs could prove they were required to work harder than
other chaplains as a result of the Policy (as to which there is
negligible evidence), and that such an injury is sufficiently
concrete and particularized to satisfy Article III, Plaintiffs
would still be required to show that it is "likely, as opposed
to merely speculative, that the injury will be redressed by a
favorable decision." Nat'l Envtl. Dev. Ass'n's Clean Air
Project v. EPA, No. 13-1035, 2014 WL 2219065, at *3 (D.C. Cir.
May 30, 2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992)) (quotation marks and ellipses omitted).
There is no indication that Plaintiffs' increased workload
in the past has had any lasting adverse effect. As the District
Court for the Southern District of California held in a related
case, "' [p] ast exposure to illegal conduct does not in itself
show a present case or controversy . . if unaccompanied by any
continuing, present adverse effects. '" Wilkins v. United
States, No. 99-CV-1579-IEG (LSP), slip op. at 23 (S.D. Cal. June
29, 2005) ("Wilkins Mem. Op. of June 29, 2005") (quoting Renne
- 21 -
v. Geary, 501 U.S. 312, 320-21 (1991)) (emphasis added)); aff'd,
232 F. App'x 710 (9th Cir. 2007).
Furthermore, there is nothing in the record to suggest that
the limited declaratory and injunctive remedies available in
this Court could provide effective relief for any injuries
Plaintiffs sustained in the past as a result of the alleged
Thirds Policy. " [W] hile plaintiffs may seek declaratory and
injunctive relief, they may not seek damages because the United
States has not waived sovereign immunity for monetary relief for
unconstitutional acts taken by government employees acting in
their official capacities." Leonard v. U.S. Dep't of Def., No.
13-1571, 2014 WL 1689606, at *3 n.2 (D.D.C. Apr. 30, 2014)
(citing Clark v. Library of Cong., 750 F.2d 89, 102-03 (D.C.
Cir. 1984)). "The government also has not waived sovereign
immunity for monetary damages resulting from violations of
RFRA." Id. (citing Webman v. Fed. Bureau of Prisons, 441 F.3d
1022, 1026 (D.C. Cir. 2006) ("RFRA does not waive the federal
government's sovereign immunity for damages.")).
Consequently, if Plaintiffs prevailed, they would be
limited to non-monetary relief for any constitutional violations
resulting from the Navy's prior use of the alleged Thirds
Policy. They have not identified any non-monetary relief that
could remedy the fact that they were required to "expend more
- 22 -
effort" than their Liturgical colleagues a decade or more ago. 11
Nor have they identified any other injury related to the alleged
Thirds Policy that the Court could redress through non-monetary
relief. 12
In sum, because Plaintiffs' request for declaratory and
forward-looking relief is moot and the Court is unable to issue
any relief for the only injury they claim to have suffered in
11
Plaintiffs do allege that Non-liturgical chaplains are still
underrepresented as a result of the alleged "Thirds Policy" and
thus suggest that the Court can provide relief for the fact that
they continue to shoulder a heavier workload. See Pls.' Opp'n
to Defs.' P. Mot. to Dismiss at 33. But this contention finds
no support in the record. As already noted, as of FY 2010, Non-
liturgical Protestants made up more than 50 percent of the
Chaplain Corps, whereas in 2011, personnel who self-identified
as belonging to a Non-liturgical faith group constituted only 13
percent of the Navy. See May 20, 2011, Berto Decl., Exs. A & B.
12
Plaintiffs allege that the Thirds Policy "applied" to
recruiting and accessions. See Consol. Compl. `` 35(b), 43; see
also Decl. of Commander Timothy J. Demy, CHC, USN ("Demy Decl.")
-r4 [Dkt. No. 178-4]. To the extent they suggest it also
applied to other personnel decisions, see Consol. Compl. ~ 43,
they have presented no evidence that it did, whereas Defendants
have submitted an affidavit clearly stating that "[t]here [we]re
no express or implied quotas for promotion based on faith"
during the relevant time period. Affidavit of R.W. Duke at 4,
Wilkins v. Lehman, No. 85-3031 (S.D. Cal. Jan. 16, 1986) ("Duke
Aff. ") [Dkt. No. 172 -3] . Similarly, a promotion board precept
dated June 23, 1987, states that boards must select officers who
"giving due consideration to the needs of the Navy for officers
with particular skills, considers best qualified for promotion,"
a standard to "be applied uniformly" to all candidates. FY 1988
Promotion Board Precept at 2 [Dkt. No. 160-8]. There is simply
no evidence that the alleged Thirds Policy, or any other
religious quotas or goals, impacted promotion, retention, or
selective early retirement decisions.
- 23 -
the past, Plaintiffs have not established the existence of a
"live controversy" pertaining to the Thirds Policy. Therefore,
the Court is without jurisdiction to consider it. See Sturm
Mem. Op. of June 18, 2002, at 6 ("While Plaintiff may take issue
with Defendant's former accession practices, ' [w] e are not in
the business of pronouncing that past actions which have no
demonstrable continuing effect were right or wrong.'") (quoting
Spencer v. Kemna, 523 U.S. 1, 18 (1998)), aff'd, 76 F. App'x 833
(9th Cir. 2003)).
For these reasons, Plaintiffs' claim related to the Thirds
Policy shall be dismissed for lack of subject matter
jurisdiction.
III. CLASS CERTIFICATION
The Court will now consider Plaintiffs' Motion for Class
Certification. Plaintiffs seek to certify a class of up to
2, 500 "present and former Non-liturgical Navy chaplains, active
duty and Reserve, who were in the Navy or have served in the
Navy" between 1976 and the present. Mot. at 3, 7. The proposed
class includes, but is not limited to: (1) chaplains whose
"careers have been injured, terminated or otherwise adversely
affected by the Navy's and the CHC's unlawful bias and prejudice
against Non-liturgical chaplains"; (2) chaplains who "saw or
experienced the Navy's Non-liturgical bias and left active duty
- 24 -
or retired early rather than endure that bias and prejudice";
and (3) chaplains "who have not yet personally suffered career
injury as a result of the practices and policies challenged here
because manifestation of the injury has been delayed [.]" Mot.
at 3-5.
A. Legal Standard
"The class action is an exception to the usual rule that
litigation is conducted by and on behalf of the individual named
parties only." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
2550 (2011) (citation and quotation marks omitted). Class
certification is governed by Rule 23 of the Federal Rules of
Civil Procedure. There are two components to the certification
inquiry: first, each of the four elements of Rule 23(a) must be
met; second, certification of the proposed class must be
appropriate under at least one of the three categories
enumerated in Rule 23 (b) . Richards v. Delta Air Lines, Inc.,
453 F.3d 525, 529 (D.C. Cir. 2006).
The proponent of class certification must prove by a
preponderance of the evidence that the requirements of Rule 23
are satisfied. Wal-Mart, 131 S. Ct. at 2548. The Supreme
Court has stated that "Rule 23 does not set forth a mere
pleading standard"; rather, " [a] party seeking class
certification must affirmatively demonstrate [its] compliance
- 25 -
with the Rule - that is, [it] must be prepared to prove that
there are in fact sufficiently numerous parties, common
questions of law or fact, etc." Id. at 2551 (emphasis in
original)
The trial court must conduct "a rigorous analysis" to
ensure that the requirements of Rule 23 have been met. Id.
This inquiry may overlap with an appraisal of the merits, for
"it may be necessary for the court to probe behind the pleadings
before coming to rest on the certification question [.]" Id.
(citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160,
(1982)). Rule 23 is not, however, a "license to engage in free-
ranging merits inquiries [,]" and merits questions may only be
considered to the extent that "they are relevant to determining
whether the Rule 23 prerequisites for class certification are
satisfied." Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133
S. Ct. 1184, 1194-95 (2013).
B. Rule 23 (a)
Under Rule 23 (a) , a plaintiff seeking certification must
demonstrate that: ( 1) the class is so numerous that joinder of
all members is impractical; (2) there are questions of law or
fact common to the class; ( 3) the claims or defenses of the
representative parties are typical of the claims or defenses of
the class; and ( 4) the representative parties will fairly and
- 26 -
adequately protect the interests of the class. Fed. R. Civ. P.
23 (a) . These four requirements are commonly referred to as
numerosity, commonality, typicality, and adequacy of
representation, respectively.
The parties do not dispute that the numerosity requirement
is satisfied; therefore, the Court confines its analysis to a
discussion of the other three requirements.
1. Commonality
Rule 23 (a) (2) requires the existence of "questions of law
or fact common to the class." Fed. R. Civ. P. 23 (a) (2). This
requirement was the basis of the Supreme Court's decision in
Wal-Mart. Wal-Mart involved a proposed class of current and
former female employees who alleged that Wal-Mart had a "strong
and uniform 'corporate culture'" that "permit [ted] bias against
women to infect, perhaps subconsciously, the discretionary
decisionmaking of each one of Wal-Mart's thousands of managers -
thereby making every woman at the company the victim of one
common discriminatory practice." Wal-Mart, 131 S. Ct. at 2548.
The Supreme Court rejected this theory as a basis for
commonality. It explained that the inquiry under Rule 23(a) (2)
is not whether class members "have all suffered a violation of
the same provision of law [,]" but rather whether "a classwide
proceeding [will] generate common answers apt to drive the
- 27 -
resolution of the litigation." Id. at 2551 (emphasis added and
citation and internal punctuation omitted) . In other words, the
class members' claims must depend on a "common contention" that
is "of such a nature that it is capable of classwide resolution
- which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of
the claims in one stroke." Id. (citations omitted).
Quoting a prior decision, the Court observed that:
Conceptually, there is a wide gap between (a) an
individual's claim that he [sic] has been denied a
promotion on discriminatory grounds, and his
[sic] otherwise unsupported allegation that the
company has a policy of discrimination, and (b) the
existence of a class of persons who have suffered the
same injury as that individual, such that the
individual's claim and the class claim will share
common questions of law or fact and that the
individual's claim will be typical of the class
claims.
Id. at 2553 (quoting Falcon, 457 U.S. at 157-58 (quotation
marks omitted)). The Court acknowledged this gap could
theoretically be bridged by "significant proof" that Wal-Mart
"operated under a general policy of discrimination." Id. It
observed, however, that "Wal-Mart's announced policy forbids sex
discrimination," and consequently, the "only corporate policy
that the plaintiffs' evidence convincingly establishes is Wal-
Mart's 'policy' of allowing discretion by local supervisors over
employment matters." Id. at 2553-54. A policy of local
- 28 -
discretion, the Court concluded, did not satisfy the commonality
requirement because it "is a policy against having uniform
employment practices[,]" and therefore, "demonstrating the
invalidity of one manager's use of discretion will do nothing to
demonstrate the invalidity of another's." Id. at 2554 (emphasis
in original).
In this case, just as in Walmart, Plaintiffs do not allege
that the Navy ever had an express policy against the advancement
of Non-liturgical Protestants. Instead, they rest their case on
an array of individual anecdotes they contend demonstrate a
"pervasive pattern of religious preference." Yet the theories
of religious discrimination reflected in these individual
anecdotes vary widely. Some of the Individual Plaintiffs
conclude that they were discriminated against because they
believe themselves to be more qualified than chaplains of
different faiths who fared better in the Chaplain Corps'
personnel system. Others complain of poor fitness reports and
unfavorable work assignments issued by their superiors, which
they blame on interpersonal disputes combined with religious
animosity, retaliation, and/or racial or gender discrimination.
Yet others tell extended narratives of local command officers or
senior chaplains interfering with their ministry efforts,
- 29 -
prayer, or worship styles for a variety of reasons they
attribute to religious hostility. 13
These diverse circumstances and theories of discrimination
undermine Plaintiffs' efforts to establish commonality at the
outset. See, e.g., Wal-Mart, 131 8. Ct. at 2557 (plaintiffs
could not show commonality because they "held a multitude of
different jobs, at different levels of Wal-Mart's hierarchy, for
variable lengths of time, in 3, 400 stores, sprinkled across 50
states" and were subjected "to a variety of regional policies
that all differed"); Garcia v. Johanns, 444 F.3d 625, 632 (D.C.
Cir. 2006) ("Establishing commonality for a disparate treatment
13
By way of illustration, one chaplain attributes his non-
selection for promotion to rumors spread about his "stability
and performance" following a referral for psychiatric evaluation
after his "liberal" command Chaplain overheard him telling his
wife that his ministry was "truncated by demonic forces
personified by Chaplains." Addendum A to Consol. Compl. ~ 50.
Four other chaplains stationed in Naples, Italy contend that
they received poor fitness reports from Catholic superior
officers for praying "in Jesus name." Id. `` 5, 10, 18, 62-63.
A chaplain stationed in Okinawa, Japan from 1991 until 1993
claims that "his Liturgical Protestant rating chaplain gave him
a poor fitness report" for failing "to support his rater's .
prayer breakfasts" and "preaching that men who call themselves
Christians should live as Christians." Consol. Compl. ~ 184(b).
Another chaplain believes his non-promotion was retaliation by a
Catholic board member who allegedly accused him of "stealing
sheep" after baptizing a woman who asked to be baptized by
immersion. Id. ~ 184(g). Another chaplain resigned after being
investigated by the Navy for sexual harassment but attributes
the investigation to religious discrimination. Addendum A to
Consol. Compl. ~ 3 0. Two Hispanic chaplains claim to have
suffered a combination of religious and racial discrimination.
Id. `` 40, 54. These types of individualized allegations
pervade the Consolidated Complaint.
- 30 -
class is particularly difficult where, as here, multiple
decisionmakers with significant local autonomy exist.")
Nevertheless, as our Court of Appeals has emphasized, the
commonality requirement is not a predominance requirement and
"even a single common question will do." D.L. v. Dist. of
Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013) (citing Wal-Mart,
131 S. Ct. at 2556). Therefore, the Court shall consider
whether Plaintiffs have identified any common issue of law or
fact tying their injuries together. 14
14
Plaintiffs argue that the Court's 2002 class certification
decision in Adair, 209 F.R.D. at 10, is the "law of the case,"
thereby governing the Court's analysis on this Motion. Sur-Sur-
Reply at 6. The Adair Class Certification Order was vacated at
Plaintiff's request on May 30, 2006, and is, therefore, no
longer "law of the case." Coalition to End Permanent Congress
v. Runyon, 979 F.2d 219, 221 n.2 (D.C. Cir. 1992) (once vacated,
an opinion is "no longer law of the case") (Silberman, J.,
dissenting). Furthermore, in light of Wal-Mart, many of the
Court's conclusions in Adair are no longer good law. For
example, the Adair decision held that, "[i]n determining whether
to certify a class, the court should not consider the underlying
merits of the plaintiff's claims," and should "accept as true
the allegations set forth in the complaint." Adair, 209 F.R.D.
at 8. Wal-Mart, however, makes clear that "Rule 23 does not set
forth a mere pleading standard" and the "party seeking class
certification must affirmatively demonstrate [its] compliance
with the Rule that is, [it] must be prepared to prove that
there are in fact common questions of law or fact [.]"
Wal-Mart, 131 S. Ct. at 2551 (emphasis in original). Similarly,
in Adair, the Court based its commonality finding on Plaintiffs'
allegations of "a pervasive pattern" of religious
discrimination. Adair, 209 F.R.D. at 10. In Wal-Mart, however,
the Supreme Court held that such allegations do not satisfy Rule
23(a) (2) unless there is "significant proof" that the defendant
"operated under a general policy of discrimination." Wal-Mart,
131 S. Ct. at 2553. In fact, as our Court of Appeals recently
- 31 -
a. "Culture" of Denominational Favoritism
Just as in Wal-Mart, Plaintiffs rely heavily on allegations
of a pervasive ~culture of prejudice" in the CHC. Mot. at 16,
37. They argue that the ~common issue in each class member, s
individual case is the Navy, s systemic and institutionalized
culture of prejudice against Non-liturgical chaplains and the
faith groups they represent, and the resulting twin
unconstitutional message of favoritism for preferred
denominations and prejudice against Plaintiffs, [sic] " Mot. at
39; see also id. at 5, 14, 15, 28, 29, 31. They define
~organizational culture" as a. ~set of common understandings,"
composed of shared ~values, ,, ~assumptions," and ~beliefs,"
~around which action is organized.,, Mot. at 15-16 (citations
omitted)
Under Wal-Mart, this theory only satisfies the commonality
requirement if the Navy,s culture of prejudice is so strong as
to suggest that the Chaplain Corps operated under a ~general
observed, ~wal-Mart 's interpretation of Rule 23 (a) (2) has
changed the landscape" of class certification. D. L., 713 F.3d
at 126-27 (citations omitted). Con~equently, neither the
Court,s 2002 certification order in Adair nor the other pre-Wal-
Mart commonality cases on which Plaintiffs rely are controlling.
See Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625, 632 (D.C.
Cir. 2010) (noting exception to ~law of the case" doctrine where
there is an ~intervening change in controlling law").
- 32 -
policy" of discrimination. 15 Plaintiffs have not come close to
satisfying this demanding standard.
First, the Navy's guiding documents clearly and
unequivocally seek to promote a culture of tolerance, not bias.
For example, the Chaplain Corps' written "Professional
Standards" expressly state that the Chaplain Corps "is a
religiously impartial governmental organization with no inherent
theology of its own" which exists to "empower individual
chaplains" to accommodate "the religious requirements of
personnel of all faiths." SECNAVINST 5351.1(5). The Standards
further provide that "[i] t is the policy of the CHC to be
equally tolerant of every Service member and other
authorized persons irrespective of that individual's religious
15
While Plaintiffs bring their discrimination claims under the
First and Fifth Amendments, not Title VII as in Wal-Mart, they
fail to offer any other viable theory as to how a class-wide
determination of "culture" might resolve an issue central to
their claims. They do not "allege hostile work environment
claims under Title VII[.]" In re Navy Chaplaincy, 850 F. Supp.
2d 86, 116 (D. D.C. 2 012) ("In re Navy Chaplaincy II") . They
argue vaguely that the Establishment Clause required Defendants
to maintain a "denominationally neutral" culture. Reply at 9.
But while they are correct that "[t]he government must be
neutral when it comes to competition between sects," Zorach v.
Clauson, 343 U.S. 3 06, 314 ( 1952) , they cite no authority for
the proposition that the Government must go beyond a policy of
neutrality to, in fact, achieve a denominationally neutral
culture. Consequently, the Court considers Plaintiffs' "culture
of prejudice" theory only insofar as it might demonstrate that
the Navy operates under a "general policy" of religious
discrimination.
- 33 -
beliefs or unbelief" and to endeavor to "accommodate the
religious beliefs of all to the fullest possible extent." Id.
encl. 2 (2), (5) (emphasis added).
Likewise, the Chaplain Corps' Guiding Principles, which
"communicate the values that hold· the CHC together as an
institution and serve as a point of reference for chaplains
throughout their careers," state that "[w] e seek to understand
cultural and religious values that differ from our own" and
"believe the right to exercise our faith is best protected when
we protect the rights of all to worship or not worship as they
choose." Id., encl. 4.
To prove that a "culture of denominational favoritism"
nevertheless exists, Plaintiffs rely primarily on affidavits and
deposition testimony in which they and other Non-liturgical
chaplains describe particular instances of hostile treatment,
retaliation, and/or specific local command officers scheming to
suppress, take over, or shut down their Non-liturgical services.
See generally Addendum A to Consol. Compl.; Reply at 20-22; Sur-
Sur Reply at 2-3.
However, Captain Lyman M. Smith, Executive Assistant to the
Chief of Navy Chaplains, has submitted a declaration explaining
that "[c] ommanding officers at the local level have ultimate
responsibility for providing command religious programs" in each
- 34 -
of the "500 separate geographically dispersed duty assignments 11
served by the CHC, and "[n]either the Chief of Chaplains nor the
Chaplain Corps controls the individual command religious
programs which are in place at each duty station. 11
Supp. Smith
Decl. at 2-3 [Dkt. No. 47-19] (citing OPNAVINSTR 1730.1D).
This . decentralized system, combined with clear Guiding
Principles and Professional Standards requiring religious
tolerance and non-discrimination, wholly defeats Plaintiffs'
suggestion that their individual experiences of discrimination
and religious intolerance stem from a "culture of prejudice 11
that is common to the class as a whole. See, e.g., Stastny v.
S. Bell Tel. & Tel. Co., 628 F.2d 267, 279 (4th Cir. 1980)
("Substantial degree of and perhaps almost complete local
autonomy in separate facilities . cuts against any inference
for class action commonality purposes. 11
); Garcia v. Veneman, 211
F.R.D. 15, 22 (D.D.C. 2002) (holding in discrimination case that
"[c]ommonality is defeated by the large numbers and
16
geographic dispersion of the decision-makers 11
)
Plaintiffs also cite to a declaration submitted by Captain
Larry H. Ellis, who refers, without elaboration, to a general
"perception 11
in the mid-1990s "among non-liturgical chaplains
16
Indeed, Plaintiffs themselves acknowledge that their
individual experiences do not portray a "culture so much as "a 11
series of individual incidents. Mot. at 16. 11
- 35 -
that the Chaplain Corps was biased toward liturgical
denominations and against non-liturgical chaplains. 11
Aff. of
Captain Larry H. Ellis, U.S.N. (Retired) ("Ellis Aff. 11
) ~ 36
[Dkt. No. 160-6]; see also id. `` 6, 11. However, neither the
Ellis Affidavit, nor the related Ellis Memorandum [Dkt. No. 132-
15] 1 suggest that Non-liturgical chaplains' perceptions of
religious bias grew out of an organizational culture that is
common to the CHC as a whole. 17
Thus, while Plaintiffs may have suffered individual
instances of religious intolerance, there is no evidence to
suggest their experiences reflect a culture that is consistent
across time and space and common to the entire class. See Dukes
17
In some cases, such perceptions appear to have arisen only
after individual chaplains spoke with their endorsing agencies
or read documents related to this case and other similar cases.
See, e.g., Decl. of Patrick M. Sturm~ 4 [Dkt. No. 178-7] (after
"talking with my endorser, it became obvious that CFGC chaplains
were not being treated fairly in the Navy Add. to Consol. 11
) ;
Compl. at 22, 23 (only "[a]fter reviewing the issues and
evidence related to this action, did "CH Hatch bee [o] me aware
11
[of] the CHC' s biased policies id. at 26 (prior to reading
11
);
documents related to this case, CH Hendricks "believed [that the
Navy's] promotion system was fair, all records were competitive,
and faith group was not important [to promotion] id. at 3 8 11
) ;
("Prior to [hearing about the allegations in this case] , CH Mak 11
"believed the Navy's . promotion system was fair and [that]
faith group was not a factor in promotion decisions id. at 49 11
);
( "CH Quiles thought his non-selection was 'the luck of the
draw.' Through one of the co-Plaintiffs, he learned of
the injustice done to him. id. at 67 ("Prior to hearing about
11
);
th [is] litigation in 2002, CH Watson had no knowledge of the
evidence showing religious bias[.] 11
).
- 36 -
v. Wal-Mart Stores, Inc., 964 F. Supp. 2d 1115, 1124 (N.D. Cal.
2013) (concluding on remand from the Supreme Court that,
although plaintiffs' anecdotes of discrimination "succeeded in
illustrating attitudes of gender bias ·held by managers at Wal-
Mart, they failed to marshal significant proof that intentional
discrimination was a general policy affecting the entire class")
(emphasis added) .
Therefore, Plaintiffs' individual anecdotes and allegations
of a "culture of prejudice" do not provide "significant proof"
that Defendants "operated under a general policy of
discrimination," as required under Wal-Mart. Wal-Mart, 131 S.
Ct. at 2553.
b. Policies and Practices
Next, Plaintiffs purport to satisfy the commonality
requirement by challenging the legality of specific personnel
policies and practices that allegedly "result [ed] in
denominational preferences in the award of career
opportunities[.]" Reply at 11. They do not, however, dispute
that the Navy's policies expressly require denominational
neutrality and religious tolerance. Instead, they argue that
"[e]ach of the challenged practices allows denominational
representatives to make subjective judgments for which there is
no accountability and no process providing effective guarantees
- 37 -
that denomination does not enter into the decision." Reply at
20.
Insofar as Plaintiffs challenge facially neutral policies,
such as secret voting, the small size of selection boards, and
the practice of appointing two chaplains to each board, they
cannot prevail unless they establish that the policies are
motivated by discriminatory intent, lack a rational basis, or
"appear to endorse religion in the eyes of a 'reasonable
observer [ . ] ' " In re Navy Chaplaincy III, 738 F.3d at 430
(emphasis in original) As our Court of Appeals recently
concluded, Plaintiffs either do not allege or have not shown a
likelihood of success on the merits as to any of these theories.
Id. at 430 ("Given facially neutral policies and no showing of
intent to discriminate, [plaintiffs] have not shown [a]
likelihood of success [on their Equal Protection claims].") i id.
at 431 ("We feel confident that reasonable observers .
are most unlikely to believe that the policies convey a message
of government endorsement.").
For the same reasons, and because Plaintiffs make no
further evidentiary showing in this Motion, they also have not
presented "significant proof" to support such theories for
purposes of the commonality requirement under Rule 23 (a) (2).
- 38 -
Therefore, Plaintiffs' attack on facially neutral policies does
not infuse Rule 23 (a) (2) commonality into their claims. 18
Plaintiffs also challenge the so-called "1 RC" policy.
However, the evidence they have presented to establish the
existence of such a policy is negligible. It consists primarily
of a chart they prepared reflecting the religious affiliation of
promotion board members from 1977 until 2002. See Consol.
Compl., Ex. 15 ("Prom. Bd. Chart") [Dkt. No. 132-16] The chart
indicates that, from roughly FY 1987 until FY 2002, each
selection board included exactly one Roman Catholic member,
except for selection boards in FY 1987 and FY 1998, which
included two Roman Catholic members. Prom. Bd. Chart at 5-13.
The source of the information in the chart is unclear and
there are significant gaps in the data presented. But even if
the Court ignores these deficiencies, the chart does not suggest
that Roman Catholics were overrepresented, favored, or treated
differently than Non-liturgical board members in selection board
appointments. To the contrary, it shows that 75 Non-Liturgical
board members served on selection boards from FY 1987 and FY
18
In fact, this Court has already dismissed Plaintiffs' facial
challenge to various selection board practices, leaving only the
possibility of a challenge "as-applied" to "certain individual
chaplains." See In re Navy Chaplaincy II, 850 F. Supp. 2d at
96. By definition, a claim that only applies to "certain
individual chaplains" would not support commonality as to the
entire class.
- 39 -
2002, while only 48 Roman Catholic board members served during
the same time period. See generally Prom. Bd. Chart at 5-13.
Furthermore, at all relevant times, the Navy's regulations
specifically prohibited "[e] xclusion from board membership by
reason of gender, race, ethnic origin, or religious
affiliation." SECNAVINST 1401.3 ~ 4(a).
Thus, there is virtually no evidence in the record
suggesting the Navy ever, in fact, had a "1 RC" policy, and the
mere allegation of such a policy cannot provide a basis for
commonality under Rule 23(a) (2).
Finally, Plaintiffs suggest that the Navy's policies are
inadequate in a way that affects the class as a whole because,
although individual personnel decisions are delegated to the
discretion of specific selection boards, that policy of
delegation, which Plaintiffs refer to as "denominationalism,"
fails to protect against individualized instances of
discrimination. See, e.g., Reply at 10 ("The common theme in
all Plaintiffs [sic] challenges is the lack of effective
guarantees ensuring religious neutrality in career impacting
decisions."); Sur-Sur Reply at 2 ("Denominationalism is the Navy
allowing its senior chaplain[s] to exercise their denominational
bias without accountability.").
- 40 -
Notwithstanding Plaintiffs' use of the label
"denominationalism" to describe the Chaplain Corps' personnel
system, their theory of commonality boils down to a complaint
that the Chaplain Corps lacks effective protections against
discriminatory decision-making by individual chaplains. See
Reply at 20 ("Each of these challenged practices allows
denominational representatives to make subjective judgments for
which there is no accountability and no process providing
effective guarantees that denomination does not enter into the
decision.").
This theory of commonality is precisely the one rejected by
Walmart and its progeny. See Walmart, at 2553-54 ("The only
corporate policy that the plaintiffs' evidence convincingly
establishes is Wal-Mart's 'policy' of allowing discretion by
local supervisors over employment matters.") i Bolden v. Walsh
Constr. Co., 688 F.3d 898, 893 (7th Cir. 2012) ("Plaintiffs[]
contend[] that Walsh has 14 policies that present common
questions, but all of these boil down to the policy of affording
discretion to each site's superintendent - and Walmart tells us
that local discretion cannot support a company-wide class no
matter how cleverly lawyers may try to repackage local
variability as uniformity.").
- 41 -
In sum, although Plaintiffs repeatedly cite to the alleged
existence of unconstitutional "policies and practices" as a
basis for class certification, they have not presented
"significant proof" of any specific unconstitutional policy or
practice that applied to them across the board as a class and
produced a common legal injury. Therefore, they may not rely on
such policies or practices to satisfy · the commonality
requirement of Rule 23(a) (2).
c. Statistical Evidence
In their final effort to establish commonality, Plaintiffs
rely on statistical evidence purporting to show religious
disparities in personnel outcomes within the CHC.
Statistical disparities alone generally are not proof that
any particular plaintiff, much less the class as a whole, has
been discriminated against. See, e.g., Bolden, 688 F.3d at 896
("If [defendant] had 25 superintendents, 5 of whom discriminated
aggregate data would show that black workers did worse
than white workers - but that result would not imply that all 25
superintendents behaved similarly, so it would not demonstrate
commonality."). Consequently, Plaintiffs' statistical evidence
can satisfy the commonality requirement only if it is so stark
as to indicate that the CHC "operated under a general policy of
discrimination," Wal-Mart, 131 S. Ct. at 2553, or suggest to the
- 42 -
"reasonable observer" that the Navy has endorsed a religious
group. In re Navy Chaplaincy III, 738 F.3d at 430. 19
As. this Court has already found, and the Court of Appeals
recently affirmed, Plaintiffs' statistical evidence to the
extent it is even statistically significant - "does not remotely
approach the stark character" that might satisfy either of these
tests. Id. at 429 ("[T]he disparity between 73.3% and 83.3%
[promotion rates] does not remotely approach the stark character
of the disparities in Gomillion [v. Lightfoot, 364 U.S. 339
(1960)] or Yick Wo [v. Hopkins, 118 U.S. 356 (1886)] ."); id. at
431 ("Assuming arguendo that it is proper to see the 'reasonable
observer' as a hypothetical person reviewing an array of
statistics . the figures in this case would not lead him [or
her] to perceive endorsement.").
Furthermore, Dr. Leuba, Plaintiffs' expert, has expressly
stated that his statistical analysis does not purport to show
that discrimination infects every CHC personnel decision, but
merely that "some bias will creep in" because he believes that
chaplains of different faiths "cannot avoid having their
19
Because Plaintiffs bring their claims under the First and Fifth
Amendments, not Title VII, disparate impact is not sufficient to
sustain their claims; our Court of Appeals has held that they
must demonstrate intentional discrimination or objective
religious endorsement. In re Navy Chaplaincy III, 738 F.3d at
429-30 (citations omitted) .
- 43 -
judgment tainted by their beliefs, even when they try to be
denominationally neutral." See Decl. of Harald Leuba, Ph.D. ,
dated Sept. 5, 2011 ("Sept. 5, 2011, Leuba Decl. ") at 11, 21
[Dkt. No. 99-3]
In fact, Dr. Leuba emphasizes that intentional
discrimination on a promotion board "would be a RARE occasion
indeed" id. at 2 8, and that he does "not opine that this is
intentional, knowing, denominational discrimination on the part
of the individual chaplains." Statistical Evidence of the
Navy's Religious Preferences, Decl. [of Harald Leuba, Ph.D.]
dated Nov. 11, 2011, at 45 [Dkt. No. 147-10] (emphasis in
original) . 20 Therefore, Plaintiffs' statistical evidence does
20
Dr. Leuba' s analysis also suffers from a series of
methodological flaws, one of which is that he "made no attempt
to control for potential confounding variables" other than
religious denomination, such as "promotion ratings, education,
or time service," that might account for the disparities he
observed. In re Navy Chaplaincy III, 738 F.3d at 429 (observing
that Dr. Leuba's analysis "does little for our analysis" because
"[c] orrelation is not causation") (citation and quotation marks
omitted); see also Sept. 5, 2011, Leuba Decl. at 21 ("The data
show statistical correlation; they do not demonstrate intent or
cause.") . This failure renders his analysis of little value in
establishing that faith group membership is, in fact, the cause
of the observed disparities. See Love v. Johanns, 439 F.3d 723,
731 (D.C. Cir. 2006) ("[T]here are countless other, non-
discriminatory explanations for any patterns in the USDA's
lending data. Instead of conducting a relatively simple
statistical analysis (such as a multiple regression) to control
for any or all of these variables, [plaintiffs' expert] simply
reported a series of elementary cross-tabulations, from which it
is impossible as a statistical matter to draw meaningful
conclusions.") (citations omitted)
- 44 -
not constitute "significant proof" that intentional religious
discrimination or religious endorsement is or was Defendants'
"standard practice."
For all of the foregoing reasons, Plaintiffs have not
demonstrated the existence of a "common answer to the crucial
question why was I disfavored." Wal-Mart, 131 S. Ct. at 2552
(emphasis in original) . Consequently, they have not satisfied
the commonality requirement of Rule 23(a) (2).
2. Typicality
Plaintiffs also fail to satisfy the typicality requirement
of Rule 23 (a) (3). This provision requires that "the claims or
defenses of the representative parties are typical of the claims
or defenses of the class." Fed. R. Civ. P. 23 (a) (3). Like the
commonality requirement, it seeks to "measure the degree of
interrelatedness between the claims in a class action," but it
"is more exacting because it requires sufficient factual and
legal similarity between the class representative's claims and
those of the class to ensure that the representative's interests
are in fact aligned with those of the absent class members."
William B. Rubenstein, Newberg on Class Actions § 3:31 (5th ed.
2013). The typicality requirement is satisfied only "if each
class member's claim arises from the same course of events that
led to the claims of the representative parties and each class
- 45 -
member makes similar legal arguments to prove the defendant's
liability." Pigford v. Glickman, 182 F.R.D. 341, 349· (D.D.C.
1998).
As discussed, Plaintiffs have not shown that their claims
have even a single question of law or fact in common with any of
the absent class members. Consequently, it would be impossible
to conclude that their claims "arise from the same course of
events" or are otherwise "typical" of the absent class members
claims. See Falcon, 457 U.S. at 157-58 n .13 (noting that the
"commonality and typicality requirements tend to merge") ;
Daskalea v. Washington Humane Soc., 275 F.R.D. 346, 358 (D.D.C.
2011) (typicality requirement not met where "members of the
proposed class suffered a wide range of deprivations and
claim distinct injuries"); Webb v. Merck & Co., Inc., 206 F.R.D.
399, 408 (E.D. Pa. 2002) (analyzing commonality and typicality
together and concluding that neither were met because
"[p] laintiffs were employed in different states, in different
divisions, in different facilities and at different levels
within the company hierarchy. In essence, this action is
nothing more than a consolidation of 20 accounts of
individualized disparate treatment.").
- 46 -
In sum, Plaintiffs have also failed to meet the typicality
requirement of Rule 23 (a) (3) . 2 l
3. Adequacy of Representation
The final requirement for class certification under Rule
23 (a) is that "the representative parties will fairly and
adequately protect the interests of the class." Fed. R. Civ. P.
23 (a) (4). "The adequacy requirement is satisfied upon a showing
that (1) there is no conflict of interest between the proposed
class representative and other members of the class, and (2) the
proposed class representative will vigorously prosecute the
interests of the class through qualified counsel." Alvarez v.
Keystone Plus Constr. Corp., No. 13-602, 2014 WL 1400846, at *6
(D.D.C. Apr. 11, 2014) (citations and quotation marks omitted).
"The inquiry into adequacy of representation, in particular,
requires the district court's close scrutiny, because the
purpose of Rule 23 (a) (4) is to ensure due process for absent
class members, who generally are bound by a judgment rendered in
a class action." Rattray v. Woodbury County, 614 F.3d 831, 835
(8th Cir. 2010).
Defendants argue that Plaintiffs are not adequate
representatives because "their paramount interest in this
2
Having concluded as much, the Court need not reach Defendants'
l
challenge to Plaintiffs' "mix and match" theory of typicality.
See Opp'n at 41-42.
- 47 -
litigation is the advancement of their collective goal of
institutional reform," which is not necessarily aligned with the
individual interests of each class member. Opp'n at 45-46. The
Court agrees.
By bringing their claims in this Court, where they are
limited to declaratory and injunctive relief, rather than in the
Court of Federal Claims, where no such limits are present, and
by further seeking to certify the class under Rule 23(b) (1) and
(b) (2), Plaintiffs are jeopardizing the rights of individual
class members to seek the full range of remedies to which they
may be entitled. See Wal-Mart, 131 8. Ct. at 2559 (noting
"perverse incentives for class representatives to place at risk
potentially valid claims for monetary relief" in order to ensure
class certification) . Plaintiffs' desire for wide-ranging
institutional reform therefore may very well be in conflict with
the interests of specific class members to obtain individualized
and/or monetary relief.
Furthermore, Plaintiffs have repeatedly subordinated the
proposed class members' interests in prompt adjudication of
thei:J;" claims to their campaign for institutional reform. For
example, rather than expeditiously preparing this case for
trial, Plaintiffs filed a series of unsuccessful motions for
injunctive relief and related appeals, which have taken years to
- 48 -
resolve. See Chaplaincy of Full Gospel Churches, 454 F.3d at
295 (describing Plaintiffs' "prolonged series of motions and
petitions") (citations omitted).
In 2006, further delaying any prompt adjudication of this
lawsuit, Plaintiffs moved this Court to vacate its Order
granting class certification. They acknowledge that one
significant reason for that request was to permit their counsel
to file Gibson as a new putative class action in a separate
ju~isdiction and thereby avoid rulings of this Court they
perceived as hostile to their quest for institutional reform.
See Pl.'s Reply at 27; Pl.'s Opp'n to Defs. Mot. for P. Summ. J.
22
at 30-31 [Dkt. No. 172]
Thereafter, in conjunction with the filing of Gibson,
Plaintiffs took further actions that significantly delayed the
progress of this case. For example, after the District Court
sitting in the Northern District of Florida granted Defendants'
motion to transfer Gibson to this Court, Plaintiffs asked this
Court to stay the case while their counsel unsuccessfully
appealed the Florida District Court's transfer order to the
22
Plaintiffs suggest that class decertification was a "logical"
step because of the Court's "four-year delay in defining the
class [.]" Pls.' Reply at 27. Yet there is no indication that
Plaintiffs ever asked the Court to define the class or that its
failure to do so resulted from anything other than the extensive
litigation surrounding other issues in the case, including
Plaintiffs' many Motions for injunctive relief.
- 49 -
Court of Appeals for the Eleventh Circuit. See Gibson Dkt. No.
4. Thereafter, Plaintiffs filed yet another motion in this
Court to transfer Gibson back to the, Northern District of
Florida, which was also unsuccessful. See Gibson Dkt. Nos. 5 &
6. These actions alone set the progress of this case back by
approximately two years.
Moreover, in moving for class decertification in this case
in 2006, Plaintiffs stated that they were "no longer willing or
able to represent or to assume the burdens inherent in
representing the class" because of recent changes to their
employment status and other life transitions. See Pls.' Mot. to
Vacate Order Granting Pls.' Mot. to Certify Class at 2 [Adair
Dkt. No. 156]. Plaintiffs have not explained why, having once
abandoned their willingness to represent the class, they are now
willing and able, once again, to serve as class representatives.
Finally, the Court notes the existence of an entirely
different type of conflict of interest. In the context of this
Motion, Plaintiffs have deviated significantly from their
original core allegation that the Navy's bias lies against Non-
liturgical Protestants as a class. They now argue that the Navy
actually favors certain "liberal" Non-liturgical Protestants,
such as Baptists, but disfavors "[t]heologically more
conservative" Non-liturgical denominations. Mot. at 17-18.
- 50 -
Plaintiffs' readiness to draw divisions among members of
the proposed class strongly indicates that they cannot be fair
and impartial representatives of the class as a whole. Baptist
class members (or those of other "liberal" faiths) might have
legitimate concerns that Plaintiffs will not zealously represent
their interests. See Phillips v. Klassen, 502 F.2d 362, 366
(D.C. Cir. 1974) ("Class members whose interests are
antagonistic in fact to, or even 'potentially conflicting' with,
the interests of the ostensibly representative parties cannot be
bound, consistent with the requirements of due process, to an
adjudication taken in their name." (quoting Hansberry v. Lee,
311 u.s. 32, 41-42 (1940)) 23
In sum, Plaintiffs' litigation record, considered in its
entirety, raises serious questions as to whether they will
properly protect and prioritize the welfare and interests of the
class members, especially to the extent such interests diverge
from their determination to obtain broad scale institutional
reform. Cf. E. Texas Motor Freight Sys. Inc. v. Rodriguez, 431
23
While the Court acknowledges that some of the named Plaintiffs
are themselves Baptist, that fact does not resolve its concerns.
Other Baptist chaplains, as well as chaplains of deriominations
that Plaintiffs consider to be "liberal," may or may not agree
with Plaintiffs' view that they are "favored" by the Navy's
policies and may, in any event, be concerned that Plaintiffs'
counsel will treat them differently from other members of the
class.
- 51 -
U.S. 395, 405 (1977) (named plaintiffs' request for relief that
was inconsistent with vote of class members and their "failure
to protect the interests of class members by moving for
certification surely bears strongly on the adequacy of the
representation that those class members might expect
receive")
For all of the foregoing reasons, Plaintiffs have not
demonstrated that they are adequate class representatives.
C. Rule 23 (b)
Even assuming Plaintiffs had satisfied the four
prerequisites set forth in Rule 23(a), they would still bear the
burden of establishing that the class is maintainable under one
of the subdivisions of Rule 23 (b) . As discussed below, they
also fail to meet this burden.
1. Rule 23(b)(l}
Under Rule 23(b) (1), certification is appropriate where
requiring the prosecution of separate actions by individual
class members would run the risk of establishing "incompatible
standards of conduct" for the defendants, Fed. R. Civ. P.
23(b) (1) (A); or where individual adjudications would, "as a
practical matter, be dispositive of the interests of the
other members not parties to the individual adjudications or
would substantially impair or impede their ability to protect
- 52 -
their interests." Fed. R. Civ. P. 23 (b) (1) (B). Since there is
"always some risk'' that individual actions may expose a
defendant to conflicting judgments on liability, certification
under subdivision (b) (1) (A) requires "something more namely, a
legitimate risk that separate actions may establish
'incompatible standards of conduct, '" so as to make individual
actions "'impossible or unworkable. '" Daskalea, 275 F.R.D. at
365 (emphasis in original) (citing 2 H. Newberg & A. Conte,
Newberg on Class Actions§ 4:4 (4th ed. 2002)) and Wal-Mart, 131
S. Ct. at 2558)
The Court finds virtually no risk that prosecuting separate
actions by individual class members would establish
"incompatible standards of conduct" for Defendants. At least
five district courts and two Courts of Appeals have examined
Plaintiffs' allegations (or substantially similar ones) over the
past decade and none has found the Navy's current policies to be
unlawful, much less accepted Plaintiffs' invitation to rewrite
such policies in their entirety. 24 Consequently, there is no
legitimate risk that maintaining separate actions would
establish incompatible standards of conduct for Defendants.
24
See In re Navy Chaplaincy III, 783 F.3d at 429-431, Larsen I,
525 F.3d 1; Larsen II, 887 F. Supp. 2d 247; Larsen v. U.S. Navy,
486 F. Supp. 2d 11 (D.D.C. 2007); Wilkins Mem. Op. of June 29,
2005, aff'd 232 F. App'x 710 (9th Cir. 2007); Sturm Mem. Op. of
June 18, 2002, aff'd 76 F. App'x 833 (9th Cir. 2003);
- 53 -
Likewise, separate actions would not impair or impede the
ability of nonparties to protect their interests. Quite the
contrary: allowing the case to proceed as a class action might
have preclusive effect for absent class members, thereby
impairing their ability to protect their own interests. Wal-
Mart, 131 S. Ct. at 2559 (noting that class certification under
Rule 23 (b) (2) created possibility "that individual class
members' compensatory-damages claims would be precluded by
litigation they had no power to hold themselves apart from").
Requiring separate actions, however, will not prevent any absent
class member from challenging the Navy's personnel practices or
bringing an individual discrimination claim in the future.
Consequently, Plaintiffs have not shown that the proposed
class is maintainable under Rule 23(b) (1).
2. Rule 23 (b) (2)
Rule 23 (b) (2) is satisfied where "the party opposing the
class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the
class as a whole[.]" Fed. R. Civ. P. 23(b) (2). The "key to the
(b) (2) class is the indivisible nature of the injunctive or
declaratory remedy warranted the notion that the conduct is
such that it can be enjoined or declared unlawful only as to all
- 54 -
of the class members or as to none of them." D.L., 713 F.3d at
125 (citing Wal-Mart, 131 S. Ct. at 2557) (quotation marks
omitted) .
Rule 23 (b) (2) thus "applies only when a single injunction
or declaratory judgment would provide relief to each member of
the class. It does not authorize class certification when each
individual class member would be entitled to a different
injunction or declaratory judgment against the defendant." Id.
(citing Wal-Mart, 131 S. Ct. at 2557). Thus, it is not enough
for class plaintiffs to "superficially structure[] their case
around a claim for class-wide injunctive and declaratory relief
. if as a substantive matter the relief sought would merely
initiate a process through which highly individualized
determinations of liability and remedy are made; this kind of
relief would be class-wide in name only, and it would certainly
not be final." Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481,
498-99 (7th Cir. 2012).
As discussed above, Plaintiffs have not identified any
"common harm suffered as a result of a policy or practice that
affects each class member." Id. Furthermore, the primary
relief they seek under Rule 23(b) (2) is an order declaring the
results of each of their respective selection board proceedings
"void ab initio." Assuming such an order is available under the
- 55 -
case law in this Circuit, it certainly would not constitute
"final" relief to the class as a whole. Instead, it would
merely initiate a process by which individual chaplains would
seek reinstatement, new selection board proceedings, correction
of their personnel records, and backpay.
For these reasons, Plaintiffs have not shown that the
proposed class is maintainable under Rule 23(b) (2).
3. Rule 23 (b) (3)
Finally, Plaintiffs seek certification under Rule 23 (b) (3).
Certification under this subsection is appropriate where "the
questions of law or fact common to class members predominate
over any questions affecting only individual members" and "a
class action is superior to other available methods for fairly
and efficiently adjudicating the controversy." Fed. R. Civ. P.
23(b)(3). "[T]he predominance inquiry duplicates the
commonality analysis in many respects," but is "far more
demanding" and delves "further into the relative importance of
the common issues to the case." Daskalea, 275 F.R.D. at 368
(citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624 (1997)
and Barnes v. District of Columbia, 242 F.R.D. 113, 123 (D.D.C.
2007)). Ultimately, a class should be certified under Rule
23 (b) (3) "only when it would achieve economies of time, effort,
and expense, and promote uniformity of decision as to persons
- 56 -
similarly situated, without sacrificing procedural fairness or
bringing about other undesirable results." Myers v. Hertz
Corp., 624 F.3d 537, 547 (2d Cir. 2010) (citation and internal
punctuation omitted))
Here, Plaintiffs have failed to demonstrate commonality
under Rule 23 (a) (2) , and therefore, they necessarily fail to
satisfy the "far more demanding" requirement of predominance.
Furthermore, for all of the many reasons set forth above, class
certification would not achieve economies of time, effort, and
expense, but instead would exponentially complicate the case;
place at risk individual claims of absent class members that may
overlap with the allegations in the Consolidated Complaint; and
jeopardize Defendants' rights to individualized determinations
on myriad fact-specific claims of discrimination and Free
Exercise harm. In sum, Plaintiffs have also failed to
demonstrate that the proposed class is maintainable under Rule
23(b)(3).
- 57 -
IV. CONCLUSION
For the foregoing reasons, Plaintiffs' Motion shall be
denied, and their claim relating to the Thirds Policy shall be
dismissed for lack of subject matter jurisdiction.
September 4, 2014
Copies to: attorneys on record via ECF
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