Chaplaincy v. U.S. Navy, No. 13–5071.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtWILLIAMS
Citation738 F.3d 425
PartiesIn re NAVY CHAPLAINCY, Chaplaincy of Full Gospel Churches, et al., Appellants v. United States Navy, et al., Appellees.
Docket NumberNo. 13–5071.
Decision Date24 February 2014

738 F.3d 425

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

No. 13–5071.

United States Court of Appeals,
District of Columbia Circuit.

Argued Nov. 6, 2013.
Decided Dec. 27, 2013.

Rehearing En Banc Denied Feb. 24, 2014.


[738 F.3d 426]


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

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

Sushma Soni, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Stuart F. Delery, Assistant Attorney General,

[738 F.3d 427]

Ronald C. Machen Jr., U.S. Attorney, and Marleigh D. Dover, Attorney.


Before: TATEL and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge:

Plaintiffs, whom we'll call simply the chaplains, are a group of current and former officers in the Navy Chaplain Corps who identify themselves as non-liturgical Christians, plus two chaplain-endorsing agencies. They sued in district court, claiming (among other things) that several of the Navy's policies for promoting chaplains prefer Catholics and liturgical Protestants at the expense of various non-liturgical denominations. The basic argument is that the policies amount to disparate treatment of the non-liturgical chaplains, violating the equal protection component of the Fifth Amendment and the Establishment Clause of the First Amendment.

The case has already been before this court several times. See In re Navy Chaplaincy, 697 F.3d 1171 (D.C.Cir.2012); In re Navy Chaplaincy, 534 F.3d 756 (D.C.Cir.2008); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C.Cir.2006). The judgment now on review is that of the district court denying plaintiffs' motion for a preliminary injunction against the Navy's use of the challenged practices. In re Navy Chaplaincy, 928 F.Supp.2d 26 (D.D.C.2013). The district court reviewed the statistical evidence offered by the plaintiffs to show inter-denominational discrimination, and found it wanting. We affirm.

* * *

The Navy uses “selection boards” to choose officers for promotion. See 10 U.S.C. § 611(a). By law, such boards must have at least five members. 10 U.S.C. § 612(a)(1). Except in certain circumstances not at issue here, at least one member of a selection board for a competitive category—here, the Chaplain Corps—must be from that competitive category. 10 U.S.C. § 612(a)(2)(A). Selection boards for chaplains before fiscal year 2003 consisted of five or more members, at least one of whom was not a chaplain. Under a change in Navy regulation, boards for fiscal year 2003 and thereafter are composed of seven officers, two of whom are chaplains “nominated without regard to religious affiliation.” SECNAVINST 1401.3A, Encl. (1), ¶ 1.c.(1)(f). Either the Chief of Chaplains or one of his two deputies serves as selection board president. According to a Defense Department Inspector General report cited by plaintiffs, “sleeves” hide the board members' hands as they depress buttons reflecting their votes, making them secret ballots. According to the chaplains, the boards take an initial secret vote and then the board president recommends two score cutoffs: candidates above the higher score are treated as clearly deserving promotion, and ones below the lower score are treated as deserving no further consideration. Candidates who fall between the two are re-evaluated for the remaining available promotions.

The chaplains asked the district court to enjoin three current Navy selection board policies—(1) staffing the seven-member selection boards with two chaplains, (2) enabling members to keep their votes secret via the “sleeves,” and (3) allowing the Chief of Chaplains or his deputy to serve as the selection board president—that they claim result in disparate treatment of the non-liturgical candidates. Plaintiffs' (July 22, 2011) Motion for a Preliminary Injunction 1. The disparate treatment, they say, is shown by various statistical data, which we'll consider shortly.

[738 F.3d 428]

The chaplains' theory is that a candidate is more likely to be promoted if he or she shares a religious denomination with one of the chaplains on the selection board, or with the Chief of Chaplains. The bottom line is an advantage in promotion rates for Catholics and liturgical Protestants over non-liturgical Christians. The chaplains posit that the small board size, combined with secret votes, 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.

Pending resolution of their summary judgment motion, the chaplains asked the district court for a preliminary injunction halting the challenged policies. The district court denied the request, but we vacated the denial and remanded for the district court to clarify its reasoning on the chaplains' likelihood of success on the merits; we were unsure whether the district court viewed the insufficiency of the chaplains' claims to be legal or factual. See In re Navy Chaplaincy, 697 F.3d at 1180. On remand, the district court concluded that the chaplains were unlikely to succeed on the merits of either claim because the statistics they offered failed to show any discriminatory intent behind the challenged policies or the resulting outcomes. In re Navy Chaplaincy, 928 F.Supp.2d at 36–37.

The chaplains appeal to us again, claiming that the court erred in requiring a showing of intent to prove either an equal protection or establishment clause violation. We find that the chaplains' equal protection attack on the Navy's facially neutral policy could prevail only if they showed a likelihood of success in proving an intent to discriminate (which they have not shown) or the lack of a rational basis for the policies (which they have not claimed). As to the Establishment Clause, the chaplains have not shown a likelihood of success under any test that they have asked the court to apply. We therefore affirm the district court's denial of the preliminary injunction.

* * *

In order to determine whether to issue a preliminary injunction, the district court applies four familiar criteria: (1) likelihood of success on the merits; (2) irreparable injury; (3) lack of substantial injury to other parties; and (4) furthering the public interest. Chaplaincy of Full Gospel Churches, 454 F.3d at 297. We have already found an absence of any error in the district court's analysis of the last three factors, and have made clear that the only unresolved issue is whether the chaplains have shown a likelihood of success on the merits. In re Navy Chaplaincy, 697 F.3d at 1179. The...

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41 practice notes
  • Harkness v. Sec'y of the Navy, No. 16-5396
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 31 d3 Maio d3 2017
    ...("When a law facially differentiates among religions, it is subject to strict scrutiny."); see also In re Navy Chaplaincy , 738 F.3d 425, 430 (D.C. Cir.2013) (analyzing the same procedures at issue here and concluding that, "[a]s the challenged policies are facially neutral, ......
  • Brown v. Nucor Corp., No. 13–1779.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 11 d1 Maio d1 2015
    ...racial discrimination—rather than chance or some other “confounding factor [ ]”—caused an alleged disparity. In re Navy Chaplaincy, 738 F.3d 425, 429 (D.C.Cir.2013). Only a controlled model can provide that answer, and Plaintiffs' experts' evidentiary model did not meet that definition.b.In......
  • Cutler v. U.S. Dep't of Health & Human Servs., Civil Action No. 13–2066 CKK
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 25 d3 Junho d3 2014
    ...initial inquiry is whether the law facially differentiates among religions.” Chaplaincy of Full Gospel Churches v. United States Navy, 738 F.3d 425, 430 (D.C.Cir.2013), petition for cert. filed, ––– U.S.L.W. –––– (May 23, 2014) (No. 13–1419) (citing Larson v. Valente, 456 U.S. 228, 102 S.Ct......
  • Cutler v. U.S. Dep't of Health & Human Servs., Civil Action No. 13–2066 (CKK)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 25 d3 Junho d3 2014
    ...initial inquiry is whether the law facially differentiates among religions.” Chaplaincy of Full Gospel Churches v. United States Navy, 738 F.3d 425, 430 (D.C.Cir.2013), petition for cert. filed, ––– U.S.L.W. –––– (May 23, 2014) (No. 13–1419) (citing Larson v. Valente, 456 U.S. 228, 102 S.Ct......
  • Request a trial to view additional results
41 cases
  • Harkness v. Sec'y of the Navy, No. 16-5396
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 31 d3 Maio d3 2017
    ...("When a law facially differentiates among religions, it is subject to strict scrutiny."); see also In re Navy Chaplaincy , 738 F.3d 425, 430 (D.C. Cir.2013) (analyzing the same procedures at issue here and concluding that, "[a]s the challenged policies are facially neutral, ......
  • Brown v. Nucor Corp., No. 13–1779.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 11 d1 Maio d1 2015
    ...racial discrimination—rather than chance or some other “confounding factor [ ]”—caused an alleged disparity. In re Navy Chaplaincy, 738 F.3d 425, 429 (D.C.Cir.2013). Only a controlled model can provide that answer, and Plaintiffs' experts' evidentiary model did not meet that definition.b.In......
  • Cutler v. U.S. Dep't of Health & Human Servs., Civil Action No. 13–2066 CKK
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 25 d3 Junho d3 2014
    ...initial inquiry is whether the law facially differentiates among religions.” Chaplaincy of Full Gospel Churches v. United States Navy, 738 F.3d 425, 430 (D.C.Cir.2013), petition for cert. filed, ––– U.S.L.W. –––– (May 23, 2014) (No. 13–1419) (citing Larson v. Valente, 456 U.S. 228, 102 S.Ct......
  • Cutler v. U.S. Dep't of Health & Human Servs., Civil Action No. 13–2066 (CKK)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 25 d3 Junho d3 2014
    ...initial inquiry is whether the law facially differentiates among religions.” Chaplaincy of Full Gospel Churches v. United States Navy, 738 F.3d 425, 430 (D.C.Cir.2013), petition for cert. filed, ––– U.S.L.W. –––– (May 23, 2014) (No. 13–1419) (citing Larson v. Valente, 456 U.S. 228, 102 S.Ct......
  • Request a trial to view additional results

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