In re Navy Chaplaincy

• Decision Date: 01 August 2008
• Docket Number: No. 07-5359.,07-5359.
• Citation: 534 F.3d 756
• 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

534 F.3d 756

In re NAVY CHAPLAINCY.

Chaplaincy Of Full Gospel Churches, et al., Appellants v. United States Navy, et al., Appellees.

No. 07-5359.

United States Court of Appeals, District of Columbia Circuit.

Argued April 24, 2008.

Decided August 1, 2008.

Appeal from the United States District Court for the District of Columbia (No. 07ms00269).

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

Lowell V. Sturgill, Jr., Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the briefs were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Robert M. Loeb, Attorney. Daniel E. Bensing, Attorney, entered an appearance.

Before: ROGERS and KAVANAUGH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KAVANAUGH, in which Senior Circuit Judge SILBERMAN joins.

Dissenting opinion filed by Circuit Judge ROGERS.

KAVANAUGH, Circuit Judge:

A group of Protestant Navy chaplains sued the Navy, alleging that the Navy's operation of its retirement system discriminates in favor of Catholic chaplains in violation of the Establishment Clause. But the plaintiffs do not claim that the Navy actually discriminated against any of them. We conclude that plaintiffs lack standing to bring this claim, and we therefore affirm the judgment of the District Court.

I

The U.S. Navy maintains a Chaplain Corps of commissioned Navy officers to meet the spiritual needs of those who serve in the Navy and their families. Like other officers, chaplains are subject to military regulations with respect to hiring, promotion, and retirement.

The Navy divides its chaplains into four categories—Catholic, liturgical Protestant, non-liturgical Protestant, and Special Worship. As we explained in a previous opinion in this litigation, "liturgical Protestant" includes Protestant denominations that follow an established liturgy in worship services and practice infant baptism, such as Lutheran, Episcopal, Methodist, Presbyterian, and Congregational. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 294 (D.C.Cir.2006) (Chaplaincy). "Non-liturgical Protestant" includes Protestant denominations that do not follow a formal liturgy in worship services and that baptize at the age of reason, such as Baptist, Evangelical, Pentecostal, and Charismatic. Id. at 294. The "Special Worship" category refers to other religious faiths, both Christian and non-Christian, and it includes Jewish, Christian Science, Seventh-Day Adventist, Mormon, Buddhist, Hindu, Muslim, Jehovah's Witness, and Unitarian. Id. at 295 n. 3.

Plaintiffs are non-liturgical Protestant Navy chaplains, both current and retired.¹ Plaintiffs filed suit, alleging that the Navy discriminates in favor of Catholic chaplains in certain aspects of its retirement system. See In re Navy Chaplaincy, 516 F.Supp.2d 119, 121 (D.D.C.2007). Plaintiffs also sought a preliminary injunction.

The District Court initially denied plaintiffs' preliminary injunction motion, finding that the chaplains had not shown the necessary irreparable injury to support a preliminary injunction. See Adair v. England, Nos. 00-cv-566 & 99-cv-2945, slip op. at 2 (D.D.C. Feb. 7, 2005). On appeal, this Court reversed, explaining that, for purposes of a preliminary injunction, the allegation of an Establishment Clause violation itself demonstrates sufficient harm to satisfy the irreparable injury prong of the preliminary injunction test—assuming, of course, that the party has standing to allege the violation in the first place. See Chaplaincy, 454 F.3d at 303-04 & n. 8. The Court therefore vacated the denial of a preliminary injunction and remanded for the District Court to consider the remaining factors in the preliminary injunction analysis, including likelihood of success on the merits. See id. at 304-05.

On remand, in a well-reasoned opinion, the District Court concluded that plaintiffs lacked standing to bring this claim. This appeal followed.

II

Article III of the Constitution limits the judicial power to deciding "Cases" and "Controversies." "One of the controlling elements in the definition of a case or controversy under Article III is standing." Hein v. Freedom From Religion Foundation, Inc., ___ U.S. ___, 127 S.Ct. 2553, 2562, 168 L.Ed.2d 424 (2007) (internal quotation marks and alteration omitted).² The three factors establishing the "irreducible constitutional minimum" of standing are well established. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First and most relevant here is injury-in-fact: A would-be plaintiff must have suffered "an invasion of a legally protected interest" that is (i) "concrete and particularized" rather than abstract or generalized and (ii) "actual or imminent" rather than remote, speculative, conjectural or hypothetical. Id. (internal quotation marks omitted); see also Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1292-93 (D.C.Cir.2007). Second is causation: The asserted injury must be "fairly traceable to the challenged action of the defendant." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks and alterations omitted). Third is redressability: It must be likely that a favorable decision by the court would redress the plaintiff's injury. Id. at 561, 112 S.Ct. 2130.

"[T]he law of Art. III standing is built on a single basic idea—the idea of separation of powers." Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The doctrine is "founded in concern about the proper— and properly limited—role of the courts in a democratic society." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The federal courts are "not empowered to seek out and strike down any governmental act that they deem to be repugnant to the Constitution." Hein, 127 S.Ct. at 2562. "Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive." Lujan, 504 U.S. at 576, 112 S.Ct. 2130; see also Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).

Those critical and bedrock principles of separation of powers inform our approach to plaintiffs' claim.

III

In reviewing the standing question, we must be "careful not to decide the questions on the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims." City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C.Cir.2003). For purposes of our analysis in this case, we therefore must assume arguendo that the Navy's operation of its retirement system favors Catholic chaplains and disfavors non-liturgical Protestant chaplains in violation of the "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). Even assuming that plaintiffs' allegations are accurate, however, they do not have standing to bring this claim against the Navy because they have not sufficiently demonstrated their own injury-in-fact.

If plaintiffs had alleged that the Navy discriminated against them on account of their religion, plaintiffs would have alleged a concrete and particularized harm sufficient to constitute injury-in-fact for standing purposes. But plaintiffs have conceded that they themselves did not suffer employment discrimination on account of their religion. They have conceded that the Navy did not deny them any benefits or opportunities on account of their religion. See In re Navy Chaplaincy, 516 F.Supp.2d 119, 124-26 (D.D.C.2007). Rather, they suggest that other chaplains suffered such discrimination.

Plaintiffs argue that they nonetheless have standing for either of two reasons: (i) they are taxpayers who object to the Navy's allegedly discriminatory operation of its chaplaincy program, or (ii) they have been subjected to the Navy's "message" of religious preference as a result of the Navy's running a retirement system that favors Catholic chaplains. We disagree. Because plaintiffs' claim does not fit within the narrow confines of Establishment Clause taxpayer standing permitted by Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), they do not have standing as taxpayers. See Hein v. Freedom From Religion Foundation, Inc., ___ U.S. ___, 127 S.Ct. 2553, 2562-72, 168 L.Ed.2d 424 (2007). Nor do plaintiffs have standing based on their exposure to the Navy's alleged "message" of religious preference.

A

As the Supreme Court has repeatedly held, a taxpayer's interest in ensuring that appropriated funds are spent in accordance with the Constitution does not suffice to confer Article III standing. See Hein, 127 S.Ct. at 2563 (2007). Back in Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), taxpayers sued the Government, arguing that the Maternity Act of 1921 improperly invaded powers reserved to States by the Tenth Amendment. The Supreme Court rejected taxpayer standing in that case: "The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same...." Id. at 487, 43 S.Ct. 597; see also Doremus v. Bd. of Educ. of Hawthorne, 342 U.S. 429, 433-34, 72 S.Ct. 394, 96 L.Ed. 475 (1952).

In 1968, 45 years after Frothingham, the Supreme Court carved out a narrow exception to the general constitutional bar on taxpayer suits; the Court held that federal taxpayers had standing to bring an Establishment...