In re Chaplaincy

• Docket Number: Misc. Action 07-269 (JDB)
• Decision Date: 23 August 2023
• Parties: IN RE NAVY CHAPLAINCY
• Court: U.S. District Court — District of Columbia

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IN RE NAVY CHAPLAINCY

Misc. Action No. 07-269 (JDB)

United States District Court, District of Columbia

August 23, 2023

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge.

The first of three cases that make up this consolidated case was filed nearly a quarter century ago. Now, decades later, before the Court are cross-motions for summary judgment on the one remaining issue: equitable tolling of the statute of limitations. Pls. Mot. for Summ. J. that Tolling Applies to the Statute of Limitations in this Case [ECF No. 368] (“Pls. Mot. for Summ. J.”); Defs. Opp'n to Pls. Mot. & Cross-Mot. for Summ. J. [ECF No. 373] (“Defs. Opp'n & Cross-Mot. for Summ. J.”). All parties agree that the statute of limitations had run by the time the first case was filed. Plaintiffs-members of the Navy Chaplain Corps-argue that equitable factors warrant tolling the statute of limitations and allowing this case to proceed. Defendants the United States Navy and the Secretary of the Navy (together, the “Navy”) disagree and request that final judgment be entered in their favor based on the untimeliness of plaintiffs' remaining claims. For the reasons set forth below, the Court will deny plaintiffs' motion to toll the statute of limitations and grant the Navy's motion for summary judgment on the statute of limitations issue.

Background

I. Statutory Background

The Navy Chaplain Corps is comprised of approximately 900 active-duty Naval officers whose primary responsibility is to “provide for the free exercise of religion for all members of the Navy and Marine Corps, their dependents, and other authorized persons.” In re England, 375 F.3d 1169, 1171 (D.C. Cir. 2004) (alteration omitted) (quoting Directive No. 1304.19, Appointment of Chaplains for the Military Services ¶ 3 (Dep't of Def. Sept. 18, 1993)); see also Decl. of Barry

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Black [ECF No. 373-3] (“Black Decl.”) ¶ 2. “A Navy chaplain's role within the service is unique, involving simultaneous service as clergy or a professional representative of a particular religious denomination and as a commissioned naval officer.” In re England, 375 F.3d at 1171 (cleaned up).

At all times relevant to this litigation, the Navy categorized its chaplains according to faith group categories (“FGCs”) for administrative purposes. In re Navy Chaplaincy (“Navy Chaplaincy II”), 323 F.Supp.3d 25, 30 (D.D.C. 2018), aff'd, No. 19-5204, 2020 WL 11568892 (D.C. Cir. Nov. 6, 2020). “[T]he Navy treated liturgical Protestants, non-liturgical Protestants, and Roman Catholics as three distinct ‘faith group categories'; a fourth and final category, ‘Special Worship,' included all other Christian denominations, as well as all other religions.” Id.

Navy chaplains follow the same promotion and retirement system as all other Naval officers. See In re England, 375 F.3d at 1172. “That system seeks to manage officers' careers to provide the Navy with the best qualified personnel through three critical personnel decisions: (1) promotion; (2) continuation on active duty; and (3) selective early retirement.” Id. To be promoted to the next rank, an officer must go before a “selection board,” which must recommend the officer for promotion. See 10 U.S.C. § 611(a). At all times relevant to this litigation, the selection board had to be comprised of at least five officers, and, for boards considering Navy chaplains, one officer had to be a chaplain. Id. § 612(a)(1), (a)(2)(A); see In re England, 375 F.3d at 1172. The promotion board considers an eligible officer's military personnel file and recommends those officers “whom the board . . . considers best qualified for promotion.” 10 U.S.C. §§ 615(a)(2), 616(a). The Secretary of the Navy “reviews the board's recommendations and adopts or modifies the list, and then forwards it to the President through the Chairman of the Joint Chiefs of Staff and the Secretary of Defense.” In re England, 375 F.3d at 1173 (citing 10 U.S.C. § 618(b), (c)).

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Each member of a selection board must take an oath to perform his duties “without prejudice or partiality and having in view both the special fitness of officers and the efficiency of [the Navy].” 10 U.S.C. § 613. And members of selection boards are prohibited from “disclos[ing] to any person not a member of the board” “[t]he proceedings of a selection board.” Id. § 613a(a). Per the statute,

[t]he discussions and deliberations of a selection board . and any written or documentary record of such discussions and deliberations-(1) are immune from legal process; (2) may not be admitted as evidence; and (3) may not be used for any purpose in any action, suit, or judicial or administrative proceeding without the consent of the Secretary of the military department concerned

Id. § 613a(b). Thus-by congressional mandate-“[t]he proceedings of selection boards are secret.” In re England, 375 F.3d at 1173-74 (quoting Brenner v. United States, 202 Ct. Cl. 678, 686 (Ct. Cl. 1973)).

II. Factual Background

A. Plaintiffs

Plaintiffs here are Protestant chaplains who fall under the Navy's “non-liturgical Protestant” FGC, so designated because their services do not follow a set liturgy (a prescribed order of worship). See Navy Chaplaincy II, 323 F.Supp.3d at 30; Pls. Statement of Remaining Remand Pls. & Claims [ECF No. 369] (“Statement of Claims”). Their consolidated complaint- which is over a hundred pages long and contains at least 18 claims, see Consol. Compl. [ECF No. 134], challenges numerous current and historical aspects of the Chaplain Corps' personnel system.

Broadly, the claims at issue here allege that the Navy's use of the FGCs is discriminatory and arbitrary; that the Navy employed religious quotas to apportion chaplains among various faith groups; that various facially neutral policies employed by the Navy “have allowed religious bias to infect selection board outcomes”; and various other free exercise claims of discrimination and

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retaliation. See In re Navy Chaplaincy (“Navy Chaplaincy I”), 69 F.Supp.3d 249, 253 (D.D.C. 2014) (describing these plaintiffs' claims).

B. Inspector General Reports

Plaintiffs detail numerous investigations conducted by the Inspectors General of the Department of Defense and the Navy into alleged religious bias in the Navy Chaplain Corps. None of these reports relate to plaintiffs' claims, nor do they focus on the time frame at issue here. Plaintiffs seemingly include these facts in their complaint to demonstrate that the Navy Chaplain Corps suffers more generally from denominational biases and retaliation.^[1]

First, in December 1997, Captain J.N. Stafford investigated a claim of discrimination lodged by Chaplain S.M. Aufderheide, alleging religious discrimination and preference in the fiscal year (“FY”) 1997 and 1998 chaplain commander selection boards. See Pls. Corrected Statement of Material Facts as to Which There is No Dispute Concerning Statute of Limitations Tolling [ECF No. 378-2] (“Pls. SMF”) ¶ 10; Ex. 2 to Pls. Mot. for Summ. J. [ECF No. 368-5] (“Stafford Report”). Specifically, Aufderheide argued that “due to a division in the Lutheran Faith, his denomination, Lutheran Church-Missouri Synod (LCMS), was not treated impartially by the board.” Ex. 4 to Pls. Mot. for Summ. J. [ECF No. 368-7] (“NIG Report”) ¶ 1. The Stafford Report concluded “that the board may have systematically applied a denominational quota system.” Pls. SMF ¶ 10(a) (quoting Stafford Report ¶ 3). The Naval Inspector General then investigated those allegations of bias, but its investigation “did not vindicate Aufderheide's claim or identify

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misconduct.” Pls. SMF ¶ 11; see NIG Report. As part of that investigation, the Secretary of the Navy “released the board members from their oath not to divulge the proceedings of the board,” and thus, “all members . . . were interviewed under oath.” NIG Report ¶ 3.

Aufderheide challenged that finding and requested a Department of Defense Inspector General (“DOD IG”) report. Pls. SMF ¶ 12; Ex. 8 to Pl. Mot. for Summ J. [ECF No. 368-11] (“DOD IG Report”). The DOD IG Report “found some indication that the well recognized shortage of Roman Catholic chaplains may have been a factor in the final selection made” in Aufderheide's board but ultimately “found [the] evidence insufficient to conclude that denomination was the primary consideration-or that any board member openly advocated the need to select Roman Catholics.” DOD IG Report at 3. The DOD IG thus “concluded that the selection was consistent with law and regulation.” Id.

After considering Aufderheide's claims of error, the DOD IG Report agreed that there was “a procedural error” which may have deprived him of “fair and impartial consideration” by his selection board. DOD IG Report at 35; accord Pls. SMF ¶ 13. The error was not a bias towards Roman Catholics or any other religious preference, but that a board member “made adverse comments” outside of the record about Aufderheide that “caused another board member to alter his vote to the detriment” of Aufderheide. DOD IG Report at 35; see Pls. SMF ¶ 13. Aufderheide was granted a new review board based on that procedural error and promoted to Commander. Pls. SMF ¶ 13.

Other IG reports from even later described different irregularities in chaplain promotion selection procedures. For example, a Navy Inspector General investigation of the FY 2000 chaplain promotion board found that board members may have inappropriately taken into account one non-selectee's “difference in philosophy concerning how women in the Navy should conduct

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themselves and represent the gender.” Ex. 10 to Pls. Mot. for Summ. J. [ECF No. 368-13] (“Washburn NIG Report”) at 1. A different Navy Inspector General report based on the 2009 chaplain promotion board validated a claim of retaliation by a non-selectee. Ex. 14 to Pls. Mot. for Summ. J. [ECF No. 368-17] (“Baker NIG Report”). The Washburn and Baker NIG Reports did not...