In Re: Navy Chaplaincy

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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IN RE: NAVY CHAPLAINCY } Case No. 1:07-mc-269 (GK}
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MEMORANDUM OPINION
Plaintiffs, 65 current and former Non-liturgical Protestant
chaplains in the United States Navy, their endorsing agencies, and
a fellowship of non-denominational Christian evangelical churches,
bring this consolidated action against the Department of the Navy
and several of its officials. Plaintiffs allege that Defendants
discriminated against Non-liturgical Protestant chaplains on the
basis of their religion, maintained a culture of denominational
favoritism in the Navy, and infringed on their free exercise and
free speech rights.
This matter is before the Court on Plaintiffs' Motion for
Modification and/or Clarification of the Court's Decision to
Dismiss Certain Plaintiffs under the Statute of Limitations
("Motion") [Dkt. No. 203 J Upon consideration of Plaintiffs'
Motion, and Plaintiffs' Errata [Dkt. No. 206], Defendants'
Opposition to the Motion [Dkt. No. 208], Plaintiffs' Reply [Dkt.
______ No._ :212L and the entire record herein, and for the reasons set - - -
forth below, Plaintiffs' Motion shall be denied.
I . BACKGROUND
A brief recitation of the facts is necessary to resolve
Plaintiffs' Motion. For a more detailed summary of the facts and
procedural history, see this Court's September 26, 2014 Memorandum
Opinion resolving the Cross-Motions for Summary Judgment [Dkt. No.
194] .
This consolidated case is composed of three cases filed by
the same counsel: Chaplaincy of Full Gospel Churches v. England,
Civ. No. 99-2945 ("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 26, 2000 [Adair Dkt. No. 21]. On
April 28, 2006, Plaintiffs' counsel filed Gibson as a separate
putative class action in the Northern District of Florida, and
that case was subsequently transferred to this District pursuant
to 28 U.S.C. § 1404. See Mem. Order, dated August 17, 2006, at 1
[Gibson Dkt. No. 1].
On June 18, 2007, the Court consolidated all three actions,
concluding that they raise "substantially similar constitutional
challenges to the Navy Chaplaincy program." Mem. Order, dated June.
18, 2007, at 4 [Dkt. No. 11]. Between 2002 and 2009, the parties
conducted discovery, interspersed with collateral litigation and
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three interlocutory appeals to the D.C. Circuit. At the Court's
request, on October 3, 2012, Plaintiffs filed a Consolidated
Complaint [Dkt. No. 134] comprised of all the claims at issue in
the consolidated case.
On September 26, 2014, the Court granted Defendants' Motion
for Partial Summary Judgment, finding that many of Plaintiffs'
claims were time-barred. 1 See Memorandum Opinion on Motions for
Partial Summary Judgment ("Summary Judgment Opinion") [Dkt. No.
194] . The Court also ordered the parties to submit a joint Notice
identifying the remaining claims following its Order. Id. The
parties submitted their Notice on October 24, 2014 [Dkt. No. 199]
and a Status Conference was held on November 5, 2014.
On November 19, 2014, Plaintiffs filed their present Motion
for Modification and/or Clarification [Dkt. No. 203]. Defendants
filed their Opposition on December 18, 2014 ("Opp'n") [Dkt.
No. 208] , and Plaintiffs filed their Reply on January 12, 2015
("Reply") [Dkt. No. 212].
1 Specifically, the Court granted summary judgment to Defendants
on: "all CFGC claims based on policies or personnel actions
---fi.naI1 zea-pr ior ~Novem15er 5-,-r9-9-3;-ai-1-Aacrtr-c1.-a:.tm-s-rra:s-e-d-on
policies or personnel actions finalized prior to March 17, 1994;
and all Gibson claims based on policies or personnel actions
finalized prior to April 28, 2000." Order dated September 26, 2014
[Dkt. No. 193]
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...
II. LEGAL STANDARD 2
Under Federal Rule of Civil Procedure 54 (b) the Court has
discretion to reconsider its own interlocutory decisions as
justice requires at "any time before the entry of a judgment
adjudicating all the claims and all the parties' rights and
liabilities[,]" Fed. R. Civ. P. 54(b).
Our Court has consistently held that Rule 54(b)
reconsideration may be granted "as justice requires.# Cobell v.
Jewell, 802 F.3d 12, 25 (D.C. Cir. 2015); Judicial Watch v. Dep't
of Army, 466 F. Supp. 2d 112, 123 (D.D.C. 2006). Under the "as
justice requires" standard, a court may consider whether it "has
patently misunderstood a party, has made a decision outside the
adversarial issues presented to the [c]ourt by the parties, has
made an error not of reasoning, but of apprehension, or where a
controlling or significant change in the law or facts [has
occurred] since the submission of the issue to the court." Judicial
Watch, 466 F. Supp. 2d at 123 (quoting Cobell v. Norton, 224 F.R.D.
2 Plaintiffs state in the first sentence of their Motion that they
also seek reconsideration under Fed. R. Civ. P. 59, but fail to
mention Rule 59 at any other point in their Motion or Reply. In
light of Plaintiffs' failure to pursue their Rule 59 argument and
because this Motion is more appropriately viewed as a Rule 54(b)
- ·--- ---Mori on, -Ene-Court: wi-1-1-1-i-m-1t-1c-s-arra-i-y-s-i-s--t-o-Ru-1-e-s-4-(-b-)-.--:rn-any-- ··
event, "courts have more flexibility in applying Rule 54(b) than
in determining whether reconsideration is appropriate under Rule
59(e) ." Cobell v. Jewell, 802 F.3d 12, 26 (D.C. Cir. 2015)
(internal quotation marks and citation omitted),
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'·
266, 272 (D.D.C. 2004)). "Errors of apprehension may include a
Court's failure to consider 'controlling decisions or data that
might reasonably be expected to alter the conclusion reached by
the court.'" Singh v. George Washington Univ., 383 F. Supp. 2d 99,
101 (D.D.C. 2005) (quoting Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir.1995)).
Ultimately, the "as justice requires" standard amounts to
determining "whether reconsideration is necessary under the
relevant circumstances." Judicial Watch, 466 F. Supp. 2d at 123.
While the court has a great deal of discretion under 54(b), it is
limited by the law of the case doctrine and "subject to the caveat
that, where litigants have once battled for the court's decision,
they should neither be required, nor without good reason permitted,
to battle for it again." Singh, 383 F. Supp. 2d at 101 (internal
citations omitted).
III. ANALYSIS
A. The Court Correctly Held Section 2401(a) To Be
Jurisdictional
Plaintiffs argue that the Court was incorrect in its
conclusion that 28 U.S.C. § 2401(a) is jurisdictional and does not
permit class action tolling. While Plaintiffs make several
arguments as to why the Court's Summary Judgment Opinion was
incorrect, they do not directly address why this Court is not bound
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by our Court of Appeals' decision in Mendoza v. Perez, 754 F.3d
1002 (D.C. Cir. 2014). 3
As discussed in the Summary Judgment Opinion that Plaintiffs
ask the Court to reconsider, our Court of Appeals has long held
that Section 2401(a) is unlike a "normal statute of limitations"
because it "'creates a jurisdictional condition attached to the
government's waiver of sdvereign immunity" that "cannot be waived
by the parties" and is not subject to equitable extensions.
Mendoza, 754 F.3d at 1018 (quoting P & V Enters. v. U.S. Army Corps
of Eng'rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008) (citing cases)).
Under this clear and controlling precedent, the Court lacks any
authority to extend the limitations period for claims governed by
Section 2401(a). Id.; see also John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 134 (2008) (observing that a "jurisdictional"
statute of limitations "forbid [s] a court to consider whether
certain equitable considerations warrant extending a limitations
period") .
3 Plaintiffs cite to Menominee Indian Tribe of Wisconsin v. United
States, 614 F.3d 523 (D.C. Cir. 2010) ("Menominee I") and Menominee
Indian Tribe of Wisconsin v. United States, 764 F.3d 51 (D.C. Cir.
2014) ("Menominee II"), but neither case is applicable, as they
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addition, Mendoza was decided only a few months after Menominee
II; presumably the Court of Appeals was aware of its recent
decision in Menominee I I when it held that Section 2401 (a) is
jurisdictional.
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The Court of Appeals has acknowledged that it has "recently
questioned the continuing viability of this holding in light of
recent Supreme Court decisions" holding that statutes of
limitations in actions against the Government are subject to the
same rebuttable presumption of equitable tolling applicable to
suits against private defendants. Mendoza, 754 F.3d at 1018 n.11
(citing P & V Enters., 516 F.3d at 1027 & n.2; Felter v. Kempthorne,
473 F.3d 1255, 1260 (D.C. Cir. 2007)). In addition, after briefing
on the present Motion was complete, the Supreme Court held that
the statute of limitations with respect to the Federal Tort Claims
Act in 28 U.S.C. § 240l(b) was not jurisdictional because Congress
had "provided no clear statement indicating that § 240l(b) is the
rare statute of limitations that can deprive a court of
jurisdiction." United States v. Kwai Fun Wong, 135 S. Ct. 1625,
1632 (2015).
However, because our Court of Appeals has explicitly held
that § 240l(a) is jurisdictional, and because the Supreme Court's
holding in Kwai Fun Wong is limited to § 2401 (b), this Court
remains bound by Circuit precedent as it currently exists.
B. The Court Correctly Denied Equitable Tolling of the
Limitations Period
Plaintrfl:s--argue that -D~~-Circui t preceaent------ariows Secc.fon-- - -
240l(a) to tolled, even if it is jurisdictional. See Pls.' Mot.
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at 5-8. Plaintiffs rely exclusively on our Court of Appeals'
decision in Hohri v. United States, 782 F.2d 227 (D.C. Cir. 1986),
vacated and remanded on other grounds, 482 U.S. 64 (1987). In
Hohri, the Circuit Court held that fraudulent concealment will
toll Section 2401(a) 's six-year statute of limitations. Hohri, 782
F.2d at 247. The Circuit Court's opinion was vacated by the Supreme
Court on unrelated jurisdictional grounds. Hohri, 482 U.S. at 68.
Since Hohri was vacated, courts in this circuit have
continuously held that because Section 240l(a) is jurisdictional,
they lack the power to toll its limitation period. See W. Virginia
Highlands Conservancy v. Johnson, 540 F. Supp. 2d 125, 138 (D.D.C.
2008) (Section 2401 (a) has been construed as a jurisdictional
statute of limitations and cannot be overcome by the application
of judicially recognized exceptions such as equitable tolling or
fraudulent concealment) ; Conservation Force v. Salazar, 811 F.
Supp. 2d 18, 27, 28 n.4 (D.D.C. 2011) (same), vacated and remanded
on other grounds, Conservation Force, Inc. v. Jewell, 733 F.3d
1200, 1202 (D.C. Cir. 2013); Appalachian Voices v. McCarthy, 989
F. Supp. 2d 30, 42-43 (D.D.C. 2013) (same); see also John R. Sand
& Gravel Co. v. United States, 552 U.S. 130, 134 (2008) (observing
that a "jurisdictional" statute of limitations "forbid[s] a court
to consider whether certain equitable considerations warrant
extending a limitations period").
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Therefore, the Court correctly denied Plaintiffs' requests
for equitable tolling.
C. Amending the Complaint
Plaintiffs request the opportunity to amend their Complaint
prior to dismissal of the time-barred chaplains. Pls.' Mot. at 11.
Plaintiffs contend that amendment of the Complaint "to further
specify and clarify their continued injury by successive failures
of selection ( "FOS") and bias in the Reserves" will allow six
chaplains to continue as plaintiffs. Id.
Plaintiffs' argument is unavailing. The Consolidated
Complaint was filed in October 2012 and is over 200 pages long,
including a 75 page appendix of very detailed information of the
claims for each plaintiff. Any claims Plaintiffs thought they had
should have been included in the Consolidated Complaint.
Plaintiffs argue that they did not include subsequent FOS by
various boards because they thought it unnecessary under D. C.
Circuit law and the law of the case. Pls.' Mot. at 11. Necessary
or not, Plaintiffs made a conscious decision not to include all of
their claims in the Consolidated Complaint or to seek amendment at
an earlier date. Although Plaintiffs may regret their decision to
omit claims by these six plaintiffs now that their claims have
been dismissed, that is not sufficient reason to permit them to
amend their Complaint to assert the previously omitted claims.
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Plaintiffs also contend that twelve chaplains should have
been permitted to join Adair v. England as additional plaintiffs
in 2002-03, and had they been permitted to do so, they would fall
within Adair's statute of limitations. Pls.' Mot. at 14. Plaintiffs
wish to file a motion "addressing the Court's failure to allow
additional plaintiffs to join in 2002-03," but at no point do they
state what the motion will consist of or what relief they will
seek. See Pls.' Mot at 14-15, 17; Pls.' Reply at 2-6.
Given Plaintiffs' lack of specificity for why the Court should
further delay dismissing the twelve chaplains who purportedly
sought to join the Adair case in 2002, the Court sees no reason to
withhold dismissal of those plaintiffs whose claims are time-
barred.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs' Motion for
Modification and/or Clarification of the Court's Decision to
Dismiss Certain Plaintiffs under the Statute of Limitations shall
be denied. An Order shall accompany this Memorandum Opinion.
February 9, 2016 GladySKeSer
United States District Judge
Copies to: attorneys on record via ECF
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