454 F.3d 290 (D.C. Cir. 2006), 05-5143, Chaplaincy of Full Gospel Churches v. England

Docket Nº:05-5143, 05-5144.
Citation:454 F.3d 290
Party Name:CHAPLAINCY OF FULL GOSPEL CHURCHES, et al., Appellants v. Gordon R. ENGLAND, Secretary of the U.S. Navy, et al., Appellees.
Case Date:July 07, 2006
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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454 F.3d 290 (D.C. Cir. 2006)

CHAPLAINCY OF FULL GOSPEL CHURCHES, et al., Appellants

v.

Gordon R. ENGLAND, Secretary of the U.S. Navy, et al., Appellees.

No. 05-5143, 05-5144.

United States Court of Appeals, District of Columbia Circuit.

July 7, 2006

Argued Jan. 9, 2006.

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Appeals from the United States District Court for the District of Columbia (No. 00cv00566) (No. 99cv02945).

Arthur A. Schulcz, Sr. argued the cause and filed the briefs for appellants.

Robert M. Loeb, Attorney, U.S. Department of Justice, argued the cause for appellees. Wit him on the brief were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and I. Glenn Cohen, Attorney.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

OPINION

BROWN, Circuit Judge.

Appellants, current and former Navy chaplains of "non-liturgical Protestant" faiths and their endorsing agency, brought suit alleging the Navy has unconstitutionally established and maintained a religious quota system for the promotion, assignment, and retention of Navy chaplains that disadvantages chaplains of non-liturgical Protestant faiths. In the midst of discovery, Appellants moved for preliminary and structural injunctions and for partial summary judgment. The district court denied the motion in its entirety, finding, in particular, that Appellants had failed to demonstrate the irreparable injury necessary to warrant preliminary injunctive relief. We affirm the district court as to its denial of a structural injunction, and we have no jurisdiction to review its denial of partial summary judgment; however, because we conclude Appellants have satisfied the requisite showing of irreparable harm for an Establishment Clause violation, we vacate the district court's judgment denying preliminary injunctive relief and remand for the district court to proceed with the remainder of the preliminary injunction determination.

I

The United States Navy maintains a Chaplain Corps to "meet the spiritual needs of those who serve in the Navy and their families." Adair v. England, 183 F.Supp.2d 31, 35 (D.D.C. 2002) (citation and internal quotation mark omitted). Chaplains serve as Naval officers and, like other military officers, both regular and reserve, receive periodic reviews by promotion selection boards that determine which officers should be recommended for promotion. Id. at 35-36; 10 U.S.C. §§ 611, 14101. Any officer a promotion selection board considers but does not recommend for promotion is deemed to have "failed of selection" (FOS) to the higher grade. 10 U.S.C. §§ 627, 14051. The military may convene a special selection board for officers who were erroneously not considered by a promotion selection board, or who were considered but did not receive lawful or proper consideration. Id.§§ 628, 14502; SECNAV Instruction 1401.1B, Special Promotion Selection Boards for Commissioned and Warrant Officers in the Navy and Marine Corps ¶ 4(b) (Dep't of the Navy Apr. 25, 1997).

Federal law mandates separation from military service based on criteria relating to age, grade, and failures of selection. In general, naval reserve officers who have not been recommended for promotion to the grade of rear admiral (lower half) must be separated from the military on the last day of the month they reach 60 years of

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age.1 10 U.S.C. § 14509. The Secretary of the Navy is afforded some flexibility to deviate from this rule, however. Provided a reserve officer in the Chaplain Corps has not twice failed to be promoted to the next higher grade, the Secretary may retain the chaplain until age 67. Id.§ 14703(a)(2). Ordinarily, a second FOS makes separation mandatory, e.g., id.§§ 14505-14506, but even officers who would otherwise be precluded from further service for having twice failed of selection may, "subject to the needs of the service," be considered for continuation under regulations prescribed by the Secretary of Defense, id.§ 14701(a)(1); SECNAV Instruction 1920.7B, Continuation on Active Duty of Regular Commissioned Officers and Reserve Officers on the Reserve Active Status List (RASL) in the Navy and Marine Corps (Dep't of the Navy Jan. 30, 2006); DoD Directive 1320.8, Continuation of Regular Commissioned Officers on Active Duty and Reserve Commissioned Officers on the Reserve Active Status List (Dep't of Defense Oct. 21, 1996).2 Chaplains retained under this continuation exception may also serve until age 67. SECNAV Instruction 1920.7B ¶ 8; DoD Directive 1320.8 ¶ 4.9.

The Secretary of the Navy has issued instructions describing the qualifications for eligibility as a Chaplain Corps officer. "To be eligible for appointment . . . in either the active-duty or Reserve components, or for voluntary recall from the Reserve component to the active-duty list," an applicant must, among other requirements, "be able to complete 20 years of active commissioned service by age 60," a benchmark that may be raised to age 62 in certain instances. SECNAV Instruction 1120.4, Appointment of Regular and Reserve Officers in the Chaplain Corps of the Navy ¶ 6(b) (Dep't of the Navy May 14, 1986). Applicants who will be unable to complete 20 years of active commissioned service by age 60 must, before their appointment, acknowledge in writing that they are ineligible for appointment to regular service. Id.¶ 6. In addition, applicants who will be unable to complete 20 years of creditable service for retirement must similarly acknowledge the same in writing. Id.

The Navy divides its chaplains into four categories according to common faith group characteristics: Catholic, liturgical Protestant, non-liturgical Protestant, and "special worship." "Liturgical Protestant" refers to Protestant denominations that trace their origins to the Reformation, retain an established liturgy in their worship services, and practice infant baptism; it includes Lutheran, Episcopal, Methodist, Presbyterian, and Congregational faiths. Adair, 183 F.Supp.2d at 36. "Non-liturgical Protestant" refers to Protestant denominations that do not have a formal liturgy or order in their worship services, that baptize only those who have reached the age of reason, and whose clergy generally do not wear religious vestments during services; it includes Baptist, Evangelical, Pentecostal, and Charismatic faiths. Id.;

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see also In re England, 375 F.3d 1169, 1172 (D.C. Cir. 2004). [3

Plaintiffs-Appellants are a group of current and former Navy chaplains of non-liturgical Protestant faiths and their recognized endorsing agency, the Chaplaincy of Full Gospel Churches.4 They filed two separate suits against the Secretary of the Navy and other Navy personnel in their official capacities and the Navy itself, Appellees here. In both actions, Appellants alleged "the Navy has established, promoted, and maintained religious quotas and other discriminatory practices in the Navy Chaplain Corps in violation of the First and Fifth Amendments," In re England, 375 F.3d at 1174, and these practices work to the detriment of non-liturgical Christian chaplains. In 2000, the district court consolidated the two cases for the purpose of addressing and resolving pretrial motions. Mem. Op. Den. the Pls.' Mot. for Prelim. and Structural Inj.; Den. the Pls.' Mot. for Partial Summ. J. Without Prejudice 2 n.2 (Feb. 7, 2005) (Mem. Op.). A prolonged series of motions and petitions followed. See, e.g., Adair v. England, 417 F.Supp.2d 1 (D.D.C.2006); Chaplaincy of Full Gospel Churches v. England, 221 F.R.D. 255 (D.D.C.2004); Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250 (D.D.C.2003), rev'd, In re England, 375 F.3d at 1169, cert. denied, 543 U.S. 1152, 125 S.Ct. 1343, 161 L.Ed.2d 116 (2005); Chaplaincy of Full Gospel Churches v. Johnson, 276 F.Supp.2d 82 (D.D.C.2003); Chaplaincy of Full Gospel Churches v. Johnson, 276 F.Supp.2d 79 (D.D.C.2003); Adair v. Johnson, 216 F.R.D. 183 (D.D.C.2003); Adair v. England, 217 F.Supp.2d 7 (D.D.C.2002); Adair v. England, 209 F.R.D. 5 (D.D.C.2002); Adair v. England, 209 F.R.D. 1 (D.D.C.2002); Adair v. England, 217 F.Supp.2d 1 (D.D.C.2002); Adair v. England, 193 F.Supp.2d 196 (D.D.C.2002); Adair, 183 F.Supp.2d at 31; see also Mem. Op. at 2 (describing the case's "wearisome, piecemeal litigation").

The instant appeal stems from the district court's denial of Appellants' latest motion, filed in the midst of discovery. Appellants' Interrogatory No. 9 requested a list of chaplains on active duty over age 62 and their denominations. From the Navy's response, Appellants identified fifteen Catholic reserve chaplains over age 62, fourteen of whom are lieutenants or lieutenant commanders who have twice failed of selection and yet remain on active duty. Mem. of P. & A. in Supp. of Pls.' Mot. for a Prelim. and Structural Inj. and Partial Summ. J. 8 (June 5, 2003) (Pls.' Mem.); Appellants' Br. 11. Appellants also identified seven of these FOS Catholic chaplains as age 67 or greater. Pls.' Mem. at 8.

Armed with this evidence, Appellants moved for preliminary and structural injunctions and partial summary judgment. Appellants contended the age 60 ceiling established by 10 U.S.C. § 14509 prohibits the Navy from allowing the identified reserve lieutenant and lieutenant commander chaplains over age 62 to remain on active duty. Id. even if the chaplains remained in service past age 60 under 10 U.S.C. § 14703, Appellants argued, the Navy violated

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that provision's absolute age limit of 67 by retaining seven chaplains of or over that age. Id. appellants also maintained that none of the chaplains over age 62 possessed sufficient time in service to qualify for retirement and the resulting pension, id., and that the Navy gave those chaplains over age 67 a "4109" personnel classification, meaning "retired reservist recalled to active duty," even though none of...

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