Larsen v. U.S. Navy, No. 02-2005 (RMU).

CourtU.S. District Court — District of Columbia
Writing for the CourtUrbina
Citation346 F.Supp.2d 122
PartiesRev. Charles E. LARSEN et al., Plaintiffs, v. The UNITED STATES NAVY et al., Defendants.
Decision Date18 November 2004
Docket NumberNo. 02-2005 (RMU).
346 F.Supp.2d 122
Rev. Charles E. LARSEN et al., Plaintiffs,
v.
The UNITED STATES NAVY et al., Defendants.
No. 02-2005 (RMU).
United States District Court, District of Columbia.
November 18, 2004.

Page 123

COPYRIGHT MATERIAL OMITTED

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Arthur A. Schulcz, Sr., Lead Attorney, The Law Office of Arthur A. Schulcz, Sr., Vienna, VA, for Plaintiffs.

Michael Q. Hyde, Lead Attorney, U.S. Department of Justice, Civil Division Federal Programs, Washington, DC, for Defendants.

MEMORANDUM OPINION

URBINA, District Judge.


Granting in Part and Denying in Part the Defendants' Motion to Dismiss
I. INTRODUCTION

This matter comes before the court on the defendants' motion to dismiss. The plaintiffs, Charles Larsen, Gregory McNear, David Myers and James Linzey, are four non-liturgical Protestant ministers who applied for but were denied commissions in the Navy Chaplain Corps ("the Corps"). They bring suit against the Navy and the Secretary of the Navy ("defendants") to challenge "the systematic and pervasive religious prejudice in the accession decisions of the Corps." Compl. ¶ 2. Specifically, the plaintiffs allege that the Navy has established religious quotas for Navy chaplain accessions that intentionally favor liturgical clergy in violation of the First and Fifth Amendments and the Religious Freedom Restoration Act. Id. The defendants move to dismiss for lack of subject matter jurisdiction and for failure to state a claim. For the reasons that follow, the court grants in part and denies in part the defendants' motion.

II. BACKGROUND

Because the facts of the present case are similar to several cases now pending before this court, the court limits its discussion of the plaintiffs' allegations to what will be necessary to resolve the instant motion. The plaintiffs are non-liturgical ministers, all with prior military service. Compl. ¶ 1. They applied to the Corps at various times in their careers, but the defendants rejected them because of a "systematic and pervasive religious prejudice"

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against non-liturgical faith groups. Id. ¶ 2. As part of this prejudice, the Navy favors liturgical Protestants, despite the under-representation of liturgical Protestant service personnel and an over-representation of non-liturgical Protestant service personnel. Id. ¶¶ 1-2.

The Defense Manpower Data Center ("DMDC") collects data on the religious preferences of individual Armed Forces members for the Department of Defense ("DOD"). Id. ¶ 8. According to the plaintiffs, this data indicates that:

In stark contrast to their low and declining percentage of [Navy] personnel, the Protestant liturgical chaplain category consistently comprises over 33% of the Chaplain Corps, about three times the actual percentage of [Navy] personnel who identify a religious preference. In contrast, non-liturgical chaplains have never come close to an equivalence of their faith group percentage of those who identify a religious preference.

Id. ¶ 13.

As the plaintiffs claim, this over-representation of liturgical chaplains represents the Navy's conscious decision to insure that liturgical chaplains control the Corps. Id. ¶ 18. "Prior to some time around 1988," the defendants based the composition of the Corps on the religious demography of the country. Id. ¶ 16. Because proportional representation led to an increased number of non-liturgicals, the Corps became "concern[ed]." Id. ¶ 17. The defendants thus abandoned their goal of proportional representation and, in 1988, imposed a "Thirds Policy." Id. ¶ 18. Under this policy, the defendants divided the Corps into thirds: Roman Catholic, Protestant liturgical, and non-liturgical Christian and Special Worship. Id. Since the defendants implemented their Thirds Policy, their accession goals for chaplain candidates have not only been arbitrary, but also a "deliberate misrepresentation of the Navy's free exercise needs ... for the purpose of minimizing the career opportunities for non-liturgical clergy and ... limit [ing] their influence in the Corps and in the Navy, and hinder[ing] the religious rights of non-liturgical personnel." Id. ¶ 22.

With regard to the individual plaintiffs, Rev. Larsen spent sixteen years in active duty in the Navy. Compl. ¶ 4(A). He left in 1982 to attend the Dallas Theological Seminary and complete the post-graduate education necessary to become a Navy chaplain. Id. While in the Dallas Seminary, Rev. Larsen applied to the Navy's Student Seminary Program but was not accepted. Id. In 1987, after graduating the Dallas Seminary, Mr. Larsen applied to join the Corps, but the Corps rejected him with a letter that stated that his non-liturgical faith group had "no quota." Id.

Rev. McNear served in the Air Force and the Colorado Air national guard prior to completing seminary in 1981. Id. ¶ 4(B). In 1993, he applied to the Navy to become a chaplain, but was told he needed additional post-graduate semester hours to meet the Corps' criteria. Id. Rev. McNear promptly completed these requirements and reapplied. Id. The Navy rejected his application, apparently because, among other things, Rev. McNear was too old and did not satisfy the "needs of the Navy". Id. As the plaintiffs maintain, however, the age explanation was a "sham" because liturgical Protestant candidates received age waivers during the same period, and the "needs of the Navy" is a "code-phrase" for an illegal quota system disfavoring non-liturgical Protestants. Id.

Rev. Myers began his career in the Navy in 1980 as a sailor and retired in 2001. Id. ¶ 4(C). He applied to the Corps in 2001. Id. Endorsed by the non-liturgical Southern Baptist Convention, Rev. Myers

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taught as a full professor at the Southern California Bible College and Seminary while in service and accumulated three masters degrees in religion-related subjects prior to applying to the Corps. Id. Nevertheless, the Corps denied Rev. Myers' application, stating that the Navy had filled its age waiver quota. Id. According to the plaintiffs, however, this explanation "makes no sense" because the Navy "has routinely given age waivers to liturgical clergy with no prior Navy experience." Id.

Finally, Rev. Linzy is endorsed by the Chaplaincy of Full Gospel Churches, a non-liturgical group. Id. ¶ 4(D). He spent three years of active duty as an Army chaplain and applied to become a Navy chaplain. Id. The Navy rejected his application — despite a shortage of chaplains — and explained to Rev. Linzy that he would have been viewed more favorably if he were a "baby baptizer" — that is, if he were not non-liturgical. Id.; see also Compl. ¶ 7(A) (noting that liturgical denominations are sometimes referred to as "high church" or "baby baptizers").

III. ANALYSIS

The plaintiffs argue that the defendants violated the First and Fifth Amendments and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb as amended ("RFRA"). Compl. ¶¶ 24-45. The plaintiffs also claim that the defendants fraudulently concealed evidence of the plaintiffs' cause of action. Id. ¶¶ 46-50. The plaintiffs seek declaratory relief, injunctive relief, and an order from the court directing the defendants to eliminate current and past bias and to provide certain remedies to the plaintiffs. Id. at 24. As to declaratory relief, the plaintiffs request a judgment that the Navy's accession policies violate the First and Fifth Amendments, the RFRA, and DOD regulations; that the Navy has unlawfully denied Rev. Larsen an opportunity to compete for the Seminary Program, a commission, a career, and a promotion; that the Navy's conduct has denied the other plaintiffs an equal opportunity to compete for a commission; and that the Navy has unlawfully caused Rev. McNear to lose a career in the Naval Reserve. Id. at 24-25. As to injunctive relief, the plaintiffs ask the court to stop the defendants from discrimination in chaplain accession and career development decisions and to stop the defendants from deriving accession goals that are not based on the Navy's religious needs. Id. at 25-26. Finally, the plaintiffs ask the court to order the defendants to: eliminate vestiges of discrimination; to develop a neutral accession system; to allow the plaintiffs the opportunity to be commissioned as chaplains if they are otherwise qualified; and to create a plan to remedy the plaintiffs' lost opportunity for career and promotion opportunities, including, depending on the plaintiff, opportunities to serve on active duty, constructive credit for active duty, constructive retirement pay, and relief under the Little Tucker Act, 28 U.S.C. § 1346(a)(2). Id. at 26-27.

The defendants move to dismiss for lack of subject-matter jurisdiction and for failure to state a claim on which relief can be granted. See generally Defs.' Mot. to Dismiss ("Defs.' Mot"). The court now turns to the defendants' specific arguments.

A. Subject Matter Jurisdiction
1. Legal Standard for Motion to Dismiss for Lack of Subject-Matter Jurisdiction

Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); St. Paul Mercury Indem.

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Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C.Cir.2004) (noting that "[a]s a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction").

Because "subject-matter jurisdiction is an `Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des BauxiteS de Guinea, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the...

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15 practice notes
  • Pollinger v. U.S., Civil Action No. 06-1885 (CKK).
    • United States
    • U.S. District Court — District of Columbia
    • 25 Marzo 2008
    ...not apply to suits for money damages." Ross, 460 F.Supp.2d at 149 (citing Holt, 441 F.Supp.2d at 96 and Larsen v. United States Navy, 346 F.Supp.2d 122, 128 (D.D.C.2004) (explaining that 5 U.S.C. § 702 provides a waiver of sovereign immunity for an "action in a court of the United States se......
  • Larsen v. U.S. Navy, Civil Action No. 02-2005 (RMU).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Abril 2007
    ...church" or "baby baptizers"). B. Procedural Background The court last issued a memorandum opinion in this case on November 18, 2004, 346 F.Supp.2d 122, denying in part and granting in part the defendants' motion to dismiss. In their motion to dismiss, the defendants moved for dismissal for ......
  • Rasul v. Rumsfeld, Civil Action No. 04-1864 RMU.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 8 Mayo 2006
    ...from a facially neutral government policy, they do not fall within the scope of RFRA. Defs.' Supp. at 10 (citing Larsen v. U.S. Navy, 346 F.Supp.2d 122 (D.D.C.2004)). In Larsen, this court considered allegations that the plaintiffs, nonliturgical Protestant ministers, were denied accession ......
  • Singh v. McHugh, Civil Action No. 14-1906 (ABJ)
    • United States
    • U.S. District Court — District of Columbia
    • 12 Junio 2015
    ...ROTC, the Court finds—and defendants agree—that the justiciability objection is moot. See Hr'g Tr. at 28–31;9 cf. Larsen v. U.S. Navy , 346 F.Supp.2d 122, 127–28 (D.D.C.2004) ("[T]he plaintiffs seek to compete for a position without the Navy subjecting them to an allegedly unconstitutional ......
  • Request a trial to view additional results
14 cases
  • Pollinger v. U.S., Civil Action No. 06-1885 (CKK).
    • United States
    • U.S. District Court — District of Columbia
    • 25 Marzo 2008
    ...not apply to suits for money damages." Ross, 460 F.Supp.2d at 149 (citing Holt, 441 F.Supp.2d at 96 and Larsen v. United States Navy, 346 F.Supp.2d 122, 128 (D.D.C.2004) (explaining that 5 U.S.C. § 702 provides a waiver of sovereign immunity for an "action in a court of the United States se......
  • Larsen v. U.S. Navy, Civil Action No. 02-2005 (RMU).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Abril 2007
    ...church" or "baby baptizers"). B. Procedural Background The court last issued a memorandum opinion in this case on November 18, 2004, 346 F.Supp.2d 122, denying in part and granting in part the defendants' motion to dismiss. In their motion to dismiss, the defendants moved for dismissal for ......
  • Rasul v. Rumsfeld, Civil Action No. 04-1864 RMU.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 8 Mayo 2006
    ...from a facially neutral government policy, they do not fall within the scope of RFRA. Defs.' Supp. at 10 (citing Larsen v. U.S. Navy, 346 F.Supp.2d 122 (D.D.C.2004)). In Larsen, this court considered allegations that the plaintiffs, nonliturgical Protestant ministers, were denied accession ......
  • Singh v. McHugh, Civil Action No. 14-1906 (ABJ)
    • United States
    • U.S. District Court — District of Columbia
    • 12 Junio 2015
    ...ROTC, the Court finds—and defendants agree—that the justiciability objection is moot. See Hr'g Tr. at 28–31;9 cf. Larsen v. U.S. Navy , 346 F.Supp.2d 122, 127–28 (D.D.C.2004) ("[T]he plaintiffs seek to compete for a position without the Navy subjecting them to an allegedly unconstitutional ......
  • Request a trial to view additional results
1 books & journal articles
  • Born-Again RFRA: Will the Military Backslide on its Religious Conversion?
    • United States
    • Missouri Law Review Vol. 87 Nbr. 2, March 2022
    • 22 Marzo 2022
    ...101, 105 (1944). (243) Id. at 105. (244) Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 736 (2014). (245) Larsen v. U.S. Navy, 346 F. Supp. 2d 122, 137 (D.D.C. 2004) ("In Hartmann v. Stone, the court held that the RFRA is inapplicable if a regulation is not neutral and generally applica......

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