Chaplaincy of Full Gospel Churches v. U.S. Navy (In re Chaplaincy), No. 12–5027.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: TATEL
• Citation: 697 F.3d 1171
• Parties: In re NAVY CHAPLAINCY. Chaplaincy of Full Gospel Churches, et al., Appellants v. United States Navy, et al., Appellees.
• Decision Date: 02 November 2012
• Docket Number: No. 12–5027.

697 F.3d 1171

403 U.S.App.D.C. 1

In re NAVY CHAPLAINCY.
Chaplaincy of Full Gospel Churches, et al., Appellants
v.
United States Navy, et al., Appellees.

No. 12–5027.

United States Court of Appeals,
District of Columbia Circuit.

Argued Sept. 10, 2012.
Decided Nov. 2, 2012.

[697 F.3d 1172]

Appeal from the United States District Court for the District of Columbia (No. 1:07–mc–00269).

[697 F.3d 1173]

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

Lewis Yelin, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Marleigh D. Dover, Attorney.

Before: HENDERSON, ROGERS, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

In this case, military chaplains, all “non-liturgical Protestants,” allege that the Navy systematically discriminates against members of their religious denominations in the awarding of promotions in violation of “[t]he clearest command of the Establishment Clause ... that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). The district court denied plaintiffs' motion for a preliminary injunction, concluding that they lacked Article III standing and, alternatively, were unlikely to succeed on the merits of their claims. For the reasons set forth in this opinion, we reverse the district court's determination that plaintiffs lack Article III standing and remand for further factual findings regarding their likelihood of success on the merits.

I.

The Navy maintains a Chaplain Corps of commissioned Naval officers who have the “responsibility ... to provide for the free exercise of religion” for all members of the Navy and their families. In re England, 375 F.3d 1169, 1171 (D.C.Cir.2004) (internal quotation marks omitted). Chaplains perform a “unique” role, serving both “as clergy or ... professional representative[s] of a particular religious denomination and as ... commissioned naval officer [s].” Id. (internal quotation marks omitted). The Navy divides the Chaplain Corps into four “faith groups”: Catholic, liturgical Protestant, non-liturgical Protestant, and Special Worship. Id. at 1172.

Plaintiffs, current and former military chaplains, are “non-liturgical Protestants.” Non-liturgical Protestants belong to Protestant denominations—including Baptist, Evangelical, Pentecostal, and Charismatic—that follow no formal liturgy in worship services and baptize at the “age of reason” rather than at infancy. In re Navy Chaplaincy, 534 F.3d 756, 759 (D.C.Cir.2008). In order to become a Navy chaplain, an individual must have an “ecclesiastical endorsement” from a faith group endorsing agency certifying that the individual is professionally qualified to represent that faith group within the Chaplain Corps. In re England, 375 F.3d at 1171–72. Two such endorsing agencies, Chaplaincy of Full Gospel Churches and Associated Gospel Churches, are among the plaintiffs in this case.

Like all Navy officers, chaplains are recommended for promotion by “selection boards” convened to consider whether particular candidates should be promoted to a higher rank. Id. at 1172. Because selection boards are required by statute to include at least one member from the “competitive category” being considered for promotion, selection boards considering chaplain promotions must have at least one chaplain as a member. 10 U.S.C. § 612(a)(2)(A). By instruction of the Secretary of the Navy, chaplain selection boards are currently composed of seven members: two chaplains and five other officers. SECNAVINST 1401.3A, Suppl. ¶ 1.c.(1)(f). Selection boards make initial promotion recommendations that are subsequently reviewed by the Secretary of the Navy and then submitted to the Secretary

[697 F.3d 1174]

of Defense for transmittal to the President. 10 U.S.C. § 618(a)(1), (c)(1).

Plaintiffs contend that Naval selection boards discriminate against non-liturgical Protestant chaplains on the basis of religious denomination. Relying on statistical analysis by their expert and other evidence, they assert that non-liturgical Protestant chaplains are promoted to higher ranks at significantly lower rates than are liturgical Protestant and Catholic chaplains, and that candidates are more likely to be recommended for promotion when they share the denomination of the chaplains who sit on the selection board.

Plaintiffs focus on certain “policies, practices, and procedures” that they allege “facilitate and allow denominational or faith group favoritism.” Appellants' Br. 7 (emphasis omitted). Specifically, plaintiffs allege that the small size of the selection boards and the practice of voting in secret allow promotion decisions to be made on the basis of religious bias. Selection board members vote by pressing one of five buttons that indicate the degree of confidence the voter has in the candidate, ranging from zero to 100. Plaintiffs contend that because boards are composed of only seven members, a chaplain can essentially veto a candidate by voting a “zero” level of confidence, thus significantly reducing that candidate's chances of selection. According to plaintiffs, because chaplains can exercise this veto power in secret, they are free to select candidates based on their own religious conceptions of how ministry should be conducted. Plaintiffs also challenge the practice of appointing the Chief of Chaplains as president of chaplain selection boards, asserting that the Chief's “role and influence as a decision maker in the award of Navy benefits introduces religion into the decision and results in denominational favoritism.” Pls.' Mem. in Supp. of Mot. for Prelim. Inj. 23. Plaintiffs tell us that “the other Armed Services” avoid these problems by convening larger selection boards and requiring public voting. Appellants' Br. 60.

As we understand it, plaintiffs' claim rests on two distinct theories. First, in what we shall call their “denominational preference” theory, they assert that selection boards discriminate against non-liturgical Protestants in making promotion decisions in violation of the Establishment Clause and the Fifth Amendment's equal protection component. Second, plaintiffs assert that the Navy, also in violation of the Establishment Clause, impermissibly delegates governmental authority to religious entities by permitting chaplains to award government benefits in the form of promotions without effective guarantees that such authority will be exercised in a neutral, secular manner.

The Navy takes issue with both theories. With respect to the denominational preference theory, the Navy asserts that there is no “factual basis for [plaintiffs'] claims that Navy chaplain promotion boards had discriminated against plaintiffs in the past or would likely do so in the future.” Appellees' Br. 36. Relying on its own statistical expert, the Navy challenges the methodology employed by plaintiffs' expert and asserts that its “own evidence establish[es] the absence of any religious discrimination by the promotion boards.” Appellees' Br. 35. As to plaintiffs' second theory, the Navy asserts that the authority delegated to chaplains who sit on promotion boards is not at all standardless because the chaplains “must abide by statutory requirements and Navy instructions governing the selection of officers for promotion.” Appellees' Br. 43.

Plaintiffs filed a motion for a preliminary injunction seeking to enjoin the challenged procedures. Denying the motion, the district court began by concluding that plaintiffs lacked Article III standing, reasoning

[697 F.3d 1175]

that their asserted future injury was too speculative because it rested on the assumption that chaplains sitting on future selection boards would “ ‘necessarily favor candidates affiliated with [their] own denomination,’ ” an assumption the court found implausible given that Naval officers “are presumed to undertake their official duties in good faith.” In re Navy Chaplaincy, 841 F.Supp.2d 336, 345 (D.D.C.2012) (citation omitted). The district court went on to conclude that even if plaintiffs had Article III standing, the balance of the four preliminary injunction factors weighed against granting injunctive relief. Although the court presumed the existence of irreparable harm because plaintiffs had alleged an Establishment Clause violation, id. at 347, the court found that plaintiffs were unlikely to succeed on the merits, id. at 345–46, and that the balance of equities and the public interest weighed against granting preliminary injunctive relief. Id. at 347–49. Plaintiffs now appeal.

II.

We begin with the question of whether we have statutory jurisdiction to hear this case. In the district court, the Navy argued that the court lacked jurisdiction to consider plaintiffs' claims because courts are prohibited by statute from reviewing claims based “on the failure of a person to be selected for promotion by a promotion board” unless the person has first exhausted administrative remedies. 10 U.S.C. § 628(h)(1). The district court rejected this argument, In re Navy Chaplaincy, 841 F.Supp.2d at 344, and the Navy has wisely chosen not to renew it on appeal. As the district court explained, jurisdiction is proper because plaintiffs ask us “to determine the validity of [a] law, regulation, or policy relating to selection boards,” not to review the promotion decisions of individual selection boards. Id.; see10 U.S.C. § 628(i)(1) (“Nothing in this section limits[ ] the jurisdiction of any court of the United States ... to determine the validity of any law, regulation, or policy relating to selection boards.”). We thus turn to the question of Article III standing, an issue we review de novo. LaRoque v. Holder, 650 F.3d 777, 785 (D.C.Cir.2011).

“[T]hose who seek to invoke the jurisdiction of the federal courts...