Chaplaincy v. U.S. Navy, 13–5071.

• Decision Date: 24 February 2014
• Docket Number: No. 13–5071.,13–5071.
• Citation: 738 F.3d 425
• Parties: In re NAVY CHAPLAINCY, Chaplaincy of Full Gospel Churches, et al., Appellants v. United States Navy, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

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.

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, 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.SeeIn 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.See10 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.

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.SeeIn 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 chaplains in effect argue that the district court used improper legal standards on that issue.But the record and the district court's findings allow us to resolve the question of likelihood of success on the merits on our own, and we accordingly do so.SeeChaplaincy of Full Gospel Churches,454 F.3d at 297(legal conclusions upon which denial of preliminary injunction relies are reviewable de novo).

Equal protection.The chaplains argue that the three challenged policies result in disparate treatment of non-liturgical chaplains.But none of the challenged practices on its face prefers any religious denomination.The regulation behind the practice of staffing boards with two chaplains explicitly requires denominational neutrality.“Chaplain Corps board members shall be nominated without regard to religious affiliation.”SECNAVINST 1401.3A Encl.(1), ¶ 1.c.(1)(f)(Dec. 20, 2005).Thus, even if one of the chaplains always serves as board president (as the chaplains allege), the board president, necessarily a board member, must be a person chosen for the board without regard to religious affiliation.Finally, the practice of secret voting is neutral on its face.All three policies together, then, are facially neutral with respect to denomination.

The chaplains nonetheless claim that the policies either were adopted with discriminatory intent or have been applied in such a manner as to favor denominations other than the non-liturgical ones.As the district court found, the chaplains have presented no evidence of discriminatory intent in the policies' enactment.Nor have they shown a current pattern of disparate outcomes from which unconstitutional discriminatory intent could be inferred under the prevailing understanding of equal protection.For such claims, “Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative.”Village of Arlington Heights v. Metropolitan Housing Development Corp.,429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450(1977)(citingGomillion v. Lightfoot,364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110(1960);Yick Wo v. Hopkins,118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220(1886)).The district court found, at best, only a 10% advantage in promotion rates for officers of the same denomination as the Chief of Chaplains (the difference between a 73.3% promotion rate for candidates of different denominations and an 83.3% rate for candidates of the same denomination).In re Navy Chaplaincy,928 F.Supp.2d at 37.

There is some internal contradiction in the chaplains' position on these figures.Their brief states that they cover promotions in the period 2003–2012, when the current procedures were in place (Appellants' Br.at 15), but it cites Joint Appendix (“J.A.”) 1107, an affidavit that situates the data in 1981–2000, before the proportion of chaplains on the selection boards was decreased.Giving the chaplains the benefit of the doubt, we assume the data apply to the later period, the one governed by the rules they seek to enjoin.The chaplains' only efforts to show a larger disparity rely on data for selections occurring before the 2003 changes.

The district court correctly noted that the disparity between 73.3% and...