Barker v. Conroy

• Decision Date: 11 October 2017
• Docket Number: Civil Action No. 16–850 (RMC)
• Citation: 282 F.Supp.3d 346
• Parties: Daniel BARKER, Plaintiff, v. Patrick CONROY, Chaplain, U.S. House of Representatives, et al., Defendants.
• Court: U.S. District Court — District of Columbia

282 F.Supp.3d 346

Daniel BARKER, Plaintiff,

v.Patrick CONROY, Chaplain, U.S. House of Representatives, et al., Defendants.

Civil Action No. 16–850 (RMC)

United States District Court, District of Columbia.

Signed October 11, 2017

Richard L. Bolton, Eric A. Baker, Boardman & Clark LLP, Madison, WI, for Plaintiff.

Sarah Elisabeth Whitman, United States Department of Justice, Thomas G. Hungar, Eleni Maria Roumel, Kimberly Ann Hamm, U.S. House of Representatives Office of General Counsel, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

Since the Continental Congress met in 1774, the States' representatives to the federal government have employed, and paid, clergy who perform as chaplains and offer a daily prayer before each session begins. Daniel Barker, an atheist and co-President of the Freedom from Religion Foundation, challenges the modern practice in the House of Representatives, whereby he was denied the opportunity to be a guest chaplain and to deliver a secular invocation in lieu of a prayer. Mr. Barker asserts that the Supreme Court's decision in Town of Greece, New York v. Galloway , ––– U.S. ––––, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014) requires his inclusion as a guest chaplain. His interpretation of Town of Greece is flawed. The legislative prayer practice of the House of Representatives is consistent with the decisions of the Supreme Court and this Circuit, as well as the Rules of the House. Mr. Barker has failed to state a claim on which he is entitled to relief. The Court also finds that extending Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) to this context is unwarranted. The Complaint will be dismissed.

I. BACKGROUND

The U.S. House of Representatives (House) commences each legislative day with a prayer, a tradition that originated during the first Continental Congress and continues today. See Motion of the Official Defendants to Dismiss the Complaint [Dkt. 16] at 3–5 (Official Capacity MTD) (describing the history of legislative prayer); see also Marsh v. Chambers , 463 U.S. 783, 788, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). A "prayer" is required under the House Rules and is consistent with the Establishment Clause. See U.S. Const. art. I § 5, cl. 2 ("Each House may determine the rules of its proceedings, ..."); see also H.R. Doc. No. 114–192, § 665, Rule II, cl. 5 ("The Chaplain shall offer a prayer at the commencement of each day's sitting of the House."); H.R. Doc. No. 114–192, § 869, Rule XIV, cl. 1 (finding the House's first "order of business ... shall be ... Prayer by the Chaplain"); Marsh , 463 U.S. at 791, 103 S.Ct. 3330. Current House Chaplain and a Defendant in this case, Father Patrick J. Conroy, is a Roman Catholic priest. See Compl. [Dkt. 1] ¶ 25. The House Chaplain, an Officer of the House elected by members, typically delivers the opening prayer, but guest chaplains have given opening prayers since 1948, although there are no written rules instructing this practice. See id . ¶¶ 55–58; see also IDA A. BRUDNICK , Cong. Research Serv., R41807, HOUSE AND SENATE CHAPLAINS: AN OVERVIEW 1 (2011). Between 2000 and 2015, 39% of opening prayers were made by guest chaplains. See Compl. ¶¶ 71–72. A guest chaplain is either invited by Fr. Conroy or sponsored by a member of the House. See Id. ¶ 60.

Daniel Barker is an American atheist activist and co-President of the Freedom From Religion Foundation (FFRF). See id. ¶¶ 13, 16. FFRF is a legal and political advocacy group for non-theists, and a frequent Establishment Clause litigant. See Id. ¶ 13; see also Official Capacity MTD at 6. On behalf of Mr. Barker, FFRF members visited Defendants Elisa Aglieco, Fr. Conroy's assistant, and Karen Bronson, Chaplain's Liaison to Staff, to inquire about "a nonreligious citizen" delivering an "opening invocation at the House." Compl. ¶ 34. Fr. Conroy's staff explained that guest chaplains are permitted to give the opening prayer if (1) they are sponsored by a House Member, (2) they are ordained, and (3) their prayer addresses a "higher power." Id. ¶ 35.

Mr. Barker alleges that he satisfied these requirements. See Id. ¶ 36. Mr. Barker's representative in the House, Mark Pocan, sponsored him by asking Fr. Conroy to grant Mr. Barker permission to deliver the morning invocation. See Id. ¶ 37. Two days later, upon Ms. Aglieco's request, Mr. Barker provided his contact information, biography, and ordination certificate for review. See Id. ¶ 38. Mr. Barker explained that he was ordained a Christian minister in 1975, but "lost faith in faith," and disavowed religious beliefs in 1994. Id. ¶¶ 14, 16. Mr. Barker maintains his ordination, using it to perform marriages, but no longer preaches the tenets of Christianity. See Id. ¶ 20. Mr. Barker also alleges that in a draft of his proposed invocation that he provided to Fr. Conroy, he addressed a "higher power," though not a god or supernatural power. Id. ¶ 105.

Fr. Conroy denied Mr. Barker's request to conduct the opening prayer in December 2015 because he is "ordained in a denomination in which he no longer practices" and "is not a religious clergyman [because he had] parted with his religious beliefs." Id. ¶¶ 111, 115; see also Official Capacity MTD at 7.

Mr. Barker filed suit on May 5, 2016, against Fr. Conroy, Ms. Aglieco, Ms. Bronson, Speaker of the House Paul Ryan, all in their official capacities, and the House and United States of America. See Compl. Mr. Barker's Complaint also includes a claim against Fr. Conroy in his individual capacity under Bivens . See id. ¶¶ 201–06. Mr. Barker alleges that the requirements expressed by Fr. Conroy's staff were a pretext for excluding and discriminating against him because the same requirements are not enforced against other potential guest chaplains. See id. ¶¶ 118–19. Mr. Barker challenges the denial of an opportunity to deliver an invocation as a guest chaplain and the requirements imposed on him but not others as violations of the Establishment, Due Process, and Religious Test Clauses of the Constitution, and the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq. See id. ¶¶ 157–200.

Mr. Barker seeks: (1) a declaration that barring atheists and nonreligious individuals from delivering the opening prayer to the House of Representatives violates the Constitution and the RFRA; (2) a declaration that guest chaplains cannot be required to invoke "a supernatural higher power"; (3) injunctive relief barring Fr. Conroy from selecting a guest chaplain on the basis of inherently religious qualifications; and (4) an order approving Mr. Barker as guest chaplain. Id. at Section V; see also Official Capacity MTD at 8.

Defendants jointly filed a Motion to Dismiss the official capacity claims on September 30, 2016, contending that Mr. Barker does not have Article III standing, his claim is non-justiciable, and he has failed to state a claim.¹ See Official Capacity MTD at 2. Mr. Barker filed a Memorandum in Opposition of Defendants' Motion to Dismiss on November 14, 2016, see Memorandum in Opposition of the Official Defendants' Motion to Dismiss [Dkt. 18] (Official Capacity Opp'n), to which Defendants replied. See Reply Memorandum in Support of the Official Defendants' Motion to Dismiss [Dkt. 21] (Official Capacity Reply). Additionally, Fr. Conroy filed a separate motion to dismiss the individual Bivens claim against him. See Defendant Patrick Conroy's Motion to Dismiss All Individual–Capacity Claims [Dkt. 14] (Conroy MTD). Mr. Barker opposed, see Memorandum Opposing Defendant Patrick Conroy's Motion to Dismiss All Individual–Capacity Claims [Dkt. 19] (Conroy Opp'n), and Fr. Conroy replied. See Reply Memorandum in Support of Defendant Patrick Conroy's Motion to Dismiss All Individual–Capacity Claims [Dkt. 20] (Conroy Reply).

II. LEGAL STANDARD

A. Standing

Standing is one feature of the Constitution's case-or-controversy limitation on federal judicial authority. See U.S. Const. art. III, § 2 ("The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ... [and] to Controversies."); see also Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n , ––– U.S. ––––, 135 S.Ct. 2652, 2663, 192 L.Ed.2d 704 (2015).

Standing turns on whether a plaintiff "alleged such a personal stake in the outcome of the controversy" as to meet federal court jurisdiction and justiciability requirements. Baker v. Carr , 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). To have Article III standing, a plaintiff must establish that: (1) he has "suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical"; (2) the injury is fairly traceable to the defendants' actions; and (3) it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." United States v. Windsor , 570 U.S. 744, 133 S.Ct. 2675, 2685–86, 186 L.Ed.2d 808 (2013) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 559–62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). Plaintiff bears the burden of establishing his standing because he is the party invoking federal jurisdiction. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

Where a party's standing is challenged in a motion to dismiss, a reviewing court "must construe the complaint in favor of the complaining party." Kurtz v. Baker , 829 F.2d 1133, 1138 (D.C. Cir. 1987) ( Kurtz II ) (citing Warth v. Seldin , 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ).

B. Motion to Dismiss— Fed. R. Civ. P. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) requires a complaint to be sufficient "to give the defendant fair notice of what the claim is and the grounds upon which it...