IN RE: NAVY CHAPLAINCY, No. 1:2007mc00269 - Document 192 (D.D.C. 2014)
Court Description: MEMORANDUM OPINION to the Order denying Plaintiffs' Motion for Class Certification. Signed by Judge Gladys Kessler on 9/4/14. (CL, )
Download PDF
<![CDATA[
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) IN RE: NAVY CHAPLAINCY Case No. 1:07-mc-269 (GK) ----------------------------~> MEMORANDUM OPINION Plaintiffs, 65 current and former nonliturgical Protestant chaplains in the United States Navy, and a fellowship churches the of non-denominational ("PlaintiffS'") , Department of ("Defendants") . against their endorsing agencies, Christian evangelical bring this consolidated action against the Navy and several of its officials Plaintiffs allege that Defendants discriminated non-liturgical Protestant chaplains on the culture of denominational basis of religion, maintained a favoritism in the Navy, and infringed on their free exercise and free speech rights. This matter is before the Court on Plaintiffs' Class Certification Motion, Reply entire Opposition [Dkt. No. record [Dkt. [Dkt. 170], herein, No. No. Upon consideration of the 147] . 156] , Reply Sur-Sur-Reply and for the Plaintiffs' Motion shall be denied. Motion for [Dkt. [Dkt. reasons No. No. set 160] , 178], forth and Surthe below, I . BACKGROUND A. 1 The Navy Chaplain Corps The Navy employs a corps of chaplains "CHC") Marines and ethical issues. advise counseling, commanders In re England, (citations omitted). 2004) Chaplains to meet the religious needs of its members. provide religious education, and ("Chaplain Corps" or and support to sailors on religious, 3 75 F. 3d 1169, moral, and (D.C. Cir. 1171 The role of a chaplain "within the service is 'unique,' involving simultaneous service as clergy or a 'professional denomination representative[]' and as (citations omitted) have a a of commissioned a particular naval officer." To serve these dual roles, and educational requirements Id. chaplains must graduate level theology degree or equivalent, physical religious applicable meet the to all commissioned officers, and be endorsed by an endorsing agency as qualified to represent a particular faith group. Id. at 1171- 72. There Department are of over Defense, 100 faith which the groups Navy has recognized grouped by the into four "faith group categories" for purposes of organizing the Chaplain Corps: Roman Catholic, Liturgical 1 Protestant, Non-liturgical The Court assumes familiarity with the extensive record of the case, which includes more than twenty written decisions by this Court and the Court of Appeals. - 2 - Protestant, and F.3d 1171, 1173 The Special (D.C. Liturgical denominations Reformation, liturgy; Cir. that trace Presbyterian their consists origins baptism, In re Navy Chaplaincy, 697 ("In re Navy Chaplaincy I"). Lutheran, faiths. re category infant includes In 2012) Protestant practice it Worship. of the to Protestant Protestant and follow a Episcopal, England, Methodist, 375 ~ Consolidated Complaint ("Consol. Compl.") prescribed F.3d 6(b) and at 1172; [Dkt. No. 134]. The Non-liturgical Protestant category is composed of Protestant denominations follow a that baptize at formal Pentecostal, England, Worship the liturgy; Bible it Church, "age of reason" includes and category encompasses other categories; Jehovah's Unitarian it all Witness, faiths. England, 454 F.3d 290, Jewish, 295 n.3 of Evangelical, faiths. not re covered by Hindu, Science, Full In The Special 6(c). denominations Christian Chaplaincy ~ Compl. includes and do not Baptist, Charismatic 375 F.3d at 1172; Consol. Muslim, ~ the Buddhist, Mormon, Gospel Churches and v. (D.C. Cir. 2006); Consol. Compl. 6 n.5. In order to maintain the requisite number of chaplains for all ranks strength"), plan" (what the setting the Navy Chaplain forth the refers Corps number to creates of - 3 - as an officers "authorized annual it end "accessions can bring on active duty that fiscal year. Theriot, CHC, USN ("Theriot Decl . " ) also SECNAVINST 1120.4A(5). process of Declaration of Captain Gene P. bringing a accessions qualified population, are but also Candidate Program, Consol. Compl. ~ Chaplain 2 [Dkt . No. 2 9- 6] ; see The term "accession" refers to the individual Corps as a commissioned officer. Corps ~ drawn from into the Chaplain 2. Chaplain the civilian community, Chaplain ~ Theriot Decl. from primarily the reserve and inter-service transfers. Id.; see also 44(c). applications Appointment Recall are reviewed by "Chaplain a and Eligibility Advisory Group" commonly referred to as a "CARE" board. or what Theriot Decl. ~ is The 3. CARE board reviews chaplain applications and recommends certain applicants to the to: consideration endorsement, the academic education, of and or considering performance, deportment, professional the CARE Chaplains, existence professional reputation personal Chief ministry interview of "giving ecclesiastical an graduate theological professional experience, results and recommendation." board's particular recommendations, Id. the letters of After Chief of Chaplains forwards his or her recommendations for accession to the Commander of the Navy Recruiting Command or the Chief of Naval Personnel for final approval/disapproval. - 4 - Id. After accession, personnel system officers, are intervals. chaplains as other required to are naval be promoted If a chaplain is considered promotion to the next higher rank, "failed of selection." F.3d at 293. chaplain to risk of "selective early retirement." Navy may, however, but not for of selection subject involuntary separation, See 10 U.S.C. § 454 the known as The 632 (a)- (b). elect to continue a chaplain on active duty these decisions selective promotion, selected § he or she is said to have failures the needs of the Navy so require. of regular (citing 10 U.S.C. despite two or more failures of selection if, Each at other Chaplaincy of Full Gospel Churches, Two or more the like rank in same the and, officers In re England, 375 F.3d at 1172 611 (a)) . to subject early See id. regarding § a 632(c) (2). chaplain's and retirement, in its judgment, career continuation on active duty - is made by a selection board composed of officers superior in England, 375 rank F.3d to at the person under 1172. The consideration. 2 selection board In re process is governed by statute and regulations prescribed by the Secretary of Defense. See 10 U.S.C. §§ 611, 2 612. Under the current Selection board rules and processes differ according to the rank and type of personnel decision under consideration. See generally 10 U.S.C. §§ 611, 612. Unless otherwise stated, the Court uses the term "selection board" to refer generically to all boards convened for the purpose of considering a change to a naval officer's employment status. - 5 - regulations, members, chaplain selection (D.C. Cir. Chaplains 2013) or one board president." B. composed In re Navy Chaplaincy, ("In SECNAVINST 1401.3A, Encl. of are of seven two of whom are chaplains "nominated without regard to religious affiliation." 427 boards of re Chaplaincy ~ l.c. (1) (f)) two deputies (1), his Navy 738 F.3d 425, I I I") (citing "Either the Chief serves as selection Id. Plaintiffs' Claims Plaintiffs are 65 current and Non-liturgical former Protestant chaplains who have collectively served in more than fifty different naval command stations worldwide during the past four decades, 3 their endorsing agencies, and a fellowship of nondenominational Christian evangelical churches. They allege that "the Navy has violated their constitutional and statutory rights by establishing a pervasive culture of hostility, animosity and prejudice towards themselves and their class" manifested by: "a pattern Christian ( 2) preferences favoring Liturgical Non-liturgical Christian chaplains"; of religious chaplains over "procedures that (1) allow and encourage denominational preferences in the award and denial of government benefits"; and 3 Among other locations, Plaintiffs served in Florida, Italy, Japan, Guam, South Carolina, North Carolina, Wisconsin, Virginia, California, Iraq, Lebanon, Georgia, Texas, Maryland, Washington, the District of Columbia, Texas, New York, Saudi Arabia, the Aleutian Islands, and Somalia. See generally Consol. Compl., Addendum A [Dkt. No. 134]. - 6 - ( 3) "hostility toward worship practices." They expert, Dr. Non-liturgical speech religious and Mot. at 5. contend that Harald R. a statistical Leuba, Ph.D., examination by demonstrates that their "[e]very dimension of personnel management which can be illuminated with data shows the CHC' [s] that ~ Plaintiffs' divide are disadvantaged by 42. Consolidated collectively separate counts, distinct. chaplains policies and practices of religious preference [.]" Consol. Compl. "Addendum" Non-liturgical exceed 200 pages and and accompanying contain sixteen many of which are not conceptually or legally For purposes their Complaint claims of into this Motion, three it is overarching sufficient categories, to as follows. 4 First, they attack a number of facially neutral personnel practices, both current and historical, which they believe have allowed religious bias to infect selection board outcomes and led to discriminatory personnel decisions. challenge: (1) the small size of Specifically, selection boards; (2) they the placement of two chaplains on each board, one of whom is either 4 The Court limits its discussion contentions at issue in this Motion Plaintiffs' claims according to the rather than the particular numerical Complaint. - 7 - to the and, in type of scheme factual and legal so doing, analyzes alleged violation, in the Consolidated the Chief of Chaplains or one of his or her deputies; the use of "secret voting" procedures and ( 3) in which board members anonymously indicate their degree of confidence in a candidate, a process Plaintiffs contend "enables each board's chaplains to ensure that a particular candidate will not be promoted, increasing the odds results." In re Navy Chaplaincy III, ~ Consol. Compl. for their preferred (and thus discriminatory) 738 F.3d at 428; see also 95(c). Plaintiffs also take issue with the fact that until 2002, "each selection candidate's three-digit code 'faith group identifier' was prominently displayed throughout the selection board process[,]" which they claim had no purpose other than "to identify a candidate's faith group to the board" for purposes of permitting the chaplain board members "to exercise their individual or faith group prejudice . , particularly against Non-liturgical chaplains." ~~ Second, religious Consol. Compl. Plaintiffs assert that, quotas or "goals" 86-87. until 2001, for apportioning opportunities among the faith group categories. ~~ 33-35. the Navy used chaplain Consol. Compl. In particular, they claim that between 1986 and 2001, the Navy had a so-called "Thirds Policy" under which it reserved thirty-five Protestants, percent of thirty-five chaplain percent - 8 - accessions to to Liturgical "Non-liturgical faith groups," and Consol. Compl. until 2002, number of thirty ~~ 33, 35, to 43. "Others," selection of "2 board RC" seats and "stacking" including Catholics. They also claim that Defendants maintained a (the so-called purpose percent "1 policy of for RC" Roman from 1977 reserving a Catholic policies), set chaplains allegedly for selection board proceedings in the favor of Roman Catholic and Liturgical Protestant chaplains despite their declining ~~ numbers in the broader population. Consol . Compl . 57 (e)- (g) Third, the in the individual "Addendum" chaplain fact-specific claims exercise violations to their Consolidated Complaint, Plaintiffs asserting advance equal a laundry protection they purportedly suffered while chaplains in the Navy. list and of free serving as These consist of highly individualized allegations that they were, at different points in time and in different (1) command transferred, based on (2) respect selective reports, removed their teachings; with or centers: faith treated to early and/or from or retaliated their by of differently retirement, employment Liturgical services; and posts content the disciplinary (4) against, from issues, recall benefits; criticized, superior officers their religious Liturgical chaplains promotion, to active (3) made retention, duty, to fitness officiate at subjected to general policies that, - 9 - while not facially discriminatory, disfavored certain aspects of their worship 184 (kk) traditions. Addendum A. 5 & policies, and See, e.g. , Consol. rights procedures Religious 2000bb, under Freedom et seq. the and ~~ 17 8- They claim that each of the practices, they challenge enabled other chaplains to discriminate against them, their Compl. First and Restoration Fifth Act Amendments Compl. permitted thereby violating ( "RFRA") , See generally Consol. or ~~ 42 and the U.S. C. 29-131, § 141- 164. Plaintiffs seek sweeping injunctive and declaratory relief that would place this Court in an essentially perpetual oversight role with respect to the Navy's personnel practices. Such remedies to repair purported damage to each and every chaplain's career, as well relief as what includes both Plaintiffs individually-tailored refer to as "fundamental reform," requiring the Navy to adjust its hiring and retention policies to Mot. match at religious 38. Their representation requested in the remedies greater include, population. but are not limited to: 5 For example, Plaintiffs allege that some "senior chaplains have insisted on rotating chaplains through . . services instead of assigning a chaplain as a 'pastor' for a congregation, reflecting the liturgical viewpoint that the liturgy satisfies the congregation's worship need, rather than the Non-liturgical view that good biblical preaching, music, and praise and worship comprise the worship experience[.]" Consol. Compl. ~ 150(b). - 10 - ¢ ¢ Reinstatement of separated Non-liturgical chaplains to active duty "until such time as they have been reviewed by legally constituted boards." Id. at 111. ¢ An order requiring the Navy to "correct the records and remove the prejudice from the affected Non-liturgical chaplain's official career file, take other necessary actions to make plaintiffs whole, and take corrective action to preclude further incidents of prejudice." Id. at 118. ¢ "Special compensation" for the named Plaintiffs "for the expense, stress and hostility they have endured to bring this action[.]" Id. at 120. ¢ An order invalidating all of the challenged personnel policies and requiring the Navy to "[d]evelop new policies, guidelines, and regulations that [,]" among other things, "officially record the religious preference of all Navy personnel"; "[e]nsure that [Non-liturgical] services receive priority or become the main Christian service when Non-liturgicals constitute a majority"; and adjust the CHC's rank structure to reflect religious preference. Id. at 117-19 (emphasis in original) . 6 ¢ 6 A judicial declaration voiding "all personnel actions" made regarding Navy chaplains of any denomination since 1977. Consol. Compl. at 119. A court-ordered "system of checks and balances" monitoring remedial efforts to ensure that consideration of religious As other courts have noted, there is an inconsistency between Plaintiffs' claim that the Navy is prohibited from considering religion in its personnel decisions and their simultaneous assertion that the Navy is constitutionally required to consider religion in its personnel decisions by developing a system of proportional representation. See Sturm v. U.S. Navy, No. 99-CV2272, slip op. at 7 (S.D. Cal. June 18, 2002) ("Sturm Mem. Op. of June 18, 2002") (noting inconsistency between argument that "the First Amendment does not permit the Government to discriminate between denominations" and simultaneous demand "that Non-liturgical Protestants be picked over Liturgical Protestants and Roman Catholics because they purportedly satisfy a higher percentage of service members' religious needs"). - 11 - considerations is "effectively eliminated" from promotions and career processes, and that future "complaints of religious discrimination are promptly investigated and addressed." Id. at 117-18. C. Defendants' Response to Plaintiffs' Claims Defendants deny Plaintiffs' allegations in their entirety. First, (the they deny that so-called existed. any of "Thirds," point They "1 that out the "quota" and RC" alleged "2 Policies) the RC" Navy's rules systems ever specifically require promotion board members to "be nominated without regard to religious membership affiliation" by reason and prohibit of religious affiliation [.]" [Dkt. 46-1] gender, 4(a) No. & Encl. Chaplain which Corps' chaplains 1(c) (1) (e)). personnel receive ethnic race, Mot. for P. from board or origin, Summ. at J. 5 (citing SECNAVINST 1401.3 ~ (citations omitted) ~ 1 Defs.' "[e] xclusion They point out further that the policies yearly and Guiding training, Principles, expressly on prohibit religious discrimination of any type and require that personnel decisions be SECNAVINST based on merit 5350.16A 7) . requirements, Defendants decisions made are on maintain the Opp'n alone. basis In accordance that of at with "[i] ndividual qualifications for P. Summ. J. at 23, 24 (citations omitted). - 12 - these accession alone" that the Navy has consistently endeavored to "access[] qualified candidates irrespective of faith group." (citing 24 and the best- Defs.' Mot. Second, Defendants claim that, of nondiscrimination, to prevent consistent with its policy the Navy has enacted numerous safeguards discrimination from infecting selection proceedings and to "protect the rights of all to worship or not worship as they choose." These Opp'n at 24 safeguards include requiring "take an oath to perform partiality"; (citing SECNAVINST 5351.1, encl. 4). [their] selection board members duties without to prejudice or instructing them to "ensure that officers are not disadvantaged because of religion"; and imposing on them a duty to report any belief that board results have been tainted by improper influence or bias. 2013, Decl. of Commander Opp' n at 2 4 Jeffrey J. & Klinger, Ex. 6 (Jan. 2 3 , USN) ("Klinger Decl.") ¢ ¢ 26, 27, 29, 59 [Dkt. No. 156-6]; see also Defs'. Mot. for P. Summ. J. at 4 (citing 10 U.S.C. Third, Plaintiffs' Opp ' n at present, largest 7 Defendants expert, 2 0- 23 , Dr. 26 . 7 challenge Leuba, They the § 613). statistical findings in their entirety. assert that from 1988 See, of e.g., until the "Non-liturgicals have steadily grown to constitute the of the four Faith Group Categories recognized by the Defendants retained their own expert, Dr. Bernard R. Siskin, Ph.D., whose analysis Plaintiffs have moved to strike under Fed. R. Evid. 702 and 403. See Opp'n, Ex. 2 (Statistical Analysis of Promotions and Early Retirement Selections in the United States Navy Chaplain Corps, Supplemental Report) [Dkt. No. 156-2]; Pls.' Renewed Mot. to Strike [Dkt. No. 169]. The Court does not rely on Dr. Siskin's report to resolve the pending Motion. - 13 - Navy for Chaplain Corps personnel management purposes, becoming the outright majority of all active duty Chaplains, both overall and at every rank save Rear Admiral." They claim accessed in Roman candidates Id.; 20, and now accessions, percent, "since greater category [,]" Corps that at FY numbers than constitute "compared to Catholics 6.3 see also Decl. at percent 2002, any other 59. 9 percent Liturgical all Opp'n at 4. Non-liturgicals 7. 2 percent, of recently faith of all have group Chaplain Protestants at and Worship Special accessions, respectively." of Veronica Berto dated May 20, 2011, Berto Decl."), Exhibit C [Dkt. No. 2 6. 7 2011 156-8]. ("May Moreover, they claim that this representation of Non-liturgical chaplains exceeds "by a significant margin" the overall percentage of Navy personnel that self-identify as belonging category within the Non-liturgical to category." a faith group Opp' n · at 2 6- 2 7 (citing May 20, 2011, Berto Decl., Exs. A & B) . 8 Fourth and finally, argue that, "[a] t its and based on the foregoing, heart, this consolidated Defendants litigation is really a collection of individual employment disputes" . in which 8 Specifically, Defendants' analysis found that "Navy personnel who self-identified as belonging to a faith group that would fall within the Non-liturgical Faith Group Category constituted only 13 percent of the Navy as of March 31, 2011[,]" whereas "Non-liturgicals constituted 53 percent of the Chaplain Corps as of FY 2010." Opp'n at 26-27 (citing May 20, 2011, Berto Decl., Exs. A & B). - 14 - the proposed class members have only "two principal common: (1) they belong to Christian faith groups categorized by the Navy as Non-liturgical and things in at (2) some point, for personnel each sustained management one or purposes; more adverse personnel decisions, such as failure to promote to the next rank or selection for early retirement." Defs.' P. Mot. at that," Defendants [Dkt. 1 No. Plaintiffs' 2 9] "Beyond 0 "individual cases diverge in to Dismiss argue, ways, numerous depending on when and where they served, what their duties were, to whom they reported and by whom they were multiple other factors." D. supervised, and Id. at 1-2. Procedural Background This consolidated case is composed of three cases filed by the same counsel: Chaplaincy of Full Gospel Churches v. England, Civ. No. 99-2945 ("Adair"); ("Gibson"). and ("CFGC"); Gibson v. Adair v. Dep't England, of Navy, Civ. Civ. No. No. 00-566 06-1696 CFGC and Adair were filed in this Court on November 5, 1999, and March 17, 2000, respectively, and were consolidated for pretrial purposes on September 2 6, 21] 0 April 2 0 0 0. [Adair Dkt. No. Gibson was filed in the Northern District of Florida on 28, 2006, and was subsequently District pursuant to 28 U.S.C. § 1404. 17, 2006, at 1 [Gibson Dkt. No. 1]. - 15 - transferred to this See Mem. Order of August On June 18, 2007, the Court consolidated all "substantially three actions, similar Chaplaincy program." concluding constitutional Mem. that challenges Order of June 18, they to raise Navy at 4 2007, the [Dkt. No. 11]. On March 26, Motion for Class August 19, 2002 5 (D.D.C. 2002, the Adair Plaintiffs filed their first Certification, [Dkt. No. 69]. 2002). which the Court result Four years later, of recent circumstances, "they on See Adair v. England, 209 F.R.D. the Adair Plaintiffs moved to vacate the 2002 Class Certification Order, a granted "job changes" [we]re no claiming that, as and longer personal other willing or able to represent or to assume the burdens inherent in representing the class." Pls.' Mot. Pls.' Mot. to Vacate the Aug. 19, 2002, Order Granting to Certify a Class, at 2 [Adair Dkt. No. 156] . On May 30, 2006, the Court granted this Motion. The parties engaged discovery between 2002 litigation Appeals. and In 2012, to this case, the three Court's in and more 2009, than five years of active interspersed with collateral interlocutory appeals Judge Ricardo Urbina, to our Court who had been assigned retired and it was reassigned to this Court. request, Consolidated Complaint on October [Dkt. No. 3, 134] remaining claims at issue. - 16 - of 2012, Plaintiffs filed At a comprised of all of the On December 4, Motion for January Class 23, No. 156] . Reply ("Reply") on March 27, [Dkt. Defendants [Dkt. 2013, No. 160]. their 2013, No. 147]. Opposition Plaintiffs renewed On ("Opp'n") filed their filed a 2013, Sur-Reply ("Sur-Reply") Plaintiffs also filed a [Dkt. No. 178]. Subject Matter Jurisdiction Over Plaintiffs' Challenge to the "Thirds Policy" Before must [Dkt. instant With permission of the Court, and on April 15, Sur-Reply ("Sur-Sur-Reply") II. filed Defendants filed the ("Mot.") On February 25, 170], No. Plaintiffs Certification 2013, [Dkt. 2 012, reaching address a the class threshold prior decisions: certification issue whether it has left issue, undecided subject matter in the one Court of its jurisdiction to consider Plaintiffs' challenge to the alleged "Thirds Policy." 9 The parties dispute whether the Thirds Policy ever existed, but it Consol. is undisputed that Compl. (policy was ~ it has not existed since 2001. 35(a)-(b); "abandoned" Pls.' in 2001) 9 Mot. for P. [Dkt. No. 55] Summ. J. See at 4-5 Our Court of The Court has an affirmative duty to ensure that it is acting within its jurisdictional limits and may raise the issue sua sponte at any time. See Fed. R. Civ. P. 12 (h) (3) ("If the [district] court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action."); Evans v. Suter, No. 09-5242, 2010 WL 1632902, at *1 (D.C. Cir. Apr. 2, 2 010) ("[A] district court may dismiss sua sponte when, as here, it is evident that the court lacks subject-matter jurisdiction[.]"). - 17 - Appeals has therefore recognized that, eliminated the Thirds Policy," Navy will reinstitute it, "because the Navy already and there is no evidence "the any injunction or order declaring it illegal would accomplish nothing - amounting to exactly the type of advisory opinion Article III prohibits." Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) In claim, 2008, Defendants arguing that, to challenge accessed to dismiss See Defs.' the Thirds Policy any prospective challenge P. Mot. to Dismiss at 21-22 They also argued that Plaintiffs lack standing the into U.S. ("Larsen I"). under Larsen I, to the Policy is moot. [Dkt . No. 2 9 -1] . moved Larsen v. Policy the because Chaplain "each Plaintiff successfully and therefore cannot Corps" show "that the Navy's past or present accession policies caused them any injury in Chaplaincy, fact, a requirement 850 F. Supp. Chaplaincy II") 2d 86, of 109 standing." (D. D.C. 2012) In re Navy ("In re Navy (citation and quotation marks omitted); see also Defs.' P. Mot. to Dismiss at 19-22. In response, direct injury Plaintiffs did not argue that they suffered a as a result of the alleged Thirds Policy (presumably because it is undisputed that they all successfully accessed into the Chaplain Corps) , but asserted instead that the Policy resulted in an underrepresentation of Non-liturgical Protestants in the Chaplain Corps that limited their ability to - 18 - meet their workload. communities' religious needs and increased their See Pls.' Opp'n to Defs.' P. Mot. to Dismiss at 29-30 [Dkt . No. 3 3] . In 2012, the Court addressed these arguments. to standing, Policy had religious it noted that limited needs their and Plaintiffs alleged that ability increased to meet their the court plaintiff [s] to draw the reasonable suffered an injury in fact In re Navy Chaplaincy II, 850 F. their the Thirds communities' workload. concluded that this "pleaded factual content, allow [s] With respect Supp. The Court accepted as true, inference to support 2d at 110. that the standing." Given the procedural pOsture of the case, however, the Court did not reach whether Plaintiffs satisfied the other elements of standing. Id. at 109-110 (quoting Sierra Club v. EPA, 292 F.3d 895, 898-99 (D.C. Cir. 2002)). With respect to mootness, the Court noted that the Court of Appeals panel in Larsen I had recently recalled its mandate due to the discovery of new evidence allegedly suggesting the Navy had reinstituted denied the Defendants' Thirds mootness Policy. challenge Consequently, "without the Court prejudice" to future consideration "after the court has ruled on the remanded Larsen matter." Id. at 110 n.11. - 19 - The district mootness issue. court in Larsen I has now ruled on the It determined that the challenge to the Thirds Policy remained moot because the newly presented evidence did not "indicate that the Thirds Policy will likely be reenacted." Larsen v. U.S. ("Larsen II"). Navy, 887 F. Supp. 2d 247, 2012) Consequently, as in any forward looking or declaratory relief that Court might would "accomplish nothing - grant with respect to the amounting Accordingly, Plaintiffs' alleged Thirds to exactly the advisory opinion Article III prohibits." 4. (D.D.C. In this case, too, there is no evidence the Navy will reinstate the alleged Thirds Policy. 1 ° Larsen I, 258 Larsen I, this Policy type of 525 F.3d at claim for declaratory and forward- looking injunctive relief related to the Thirds Policy is moot. In light demonstrate 10 of this standing to conclusion, challenge Plaintiffs the Policy. also They cannot have The evidence of the Thirds Policy consists largely of a single memorandum from Captain D. K. Muchow to the Chief of Chaplains regarding the annual accessions plan for FY 1987 (the "Muchow [Dkt. No. 55-22]. The Muchow Memorandum states Memorandum") that "[f]aith group mix best meets the needs of the naval service when 35 percent of the Chaplain Corps inventory is liturgical, 35 percent non-liturgical and 30 percent other (Roman Catholic, Jewish, Orthodox)." Id. at 1. However, it makes no reference whatsoever to the existence of any formal Thirds Policy and there is no indication that Muchow's assessment of optimal "faith group mix" reflected the views of the CHC as a whole or pertained to accession goals for any year other than FY 1987. At his deposition, Muchow characterized the Memorandum as merely a "snapshot of where we were" in FY 1987. See Dep. Tr. of Donald K. Muchow at 44:18 [Dkt. No. 47-15]. - 20 - previously argued that they suffered an Article III injury as a result of the Thirds Policy because it limited their ability to meet the religious needs of Non-liturgical service members and increased their workload. Even however, assuming, that Plaintiffs could prove they were required to work harder than other chaplains as a result of the Policy (as to which there is negligible evidence), and that such an injury is concrete and particularized to satisfy Article sufficiently III, Plaintiffs would still be required to show that it is "likely, as opposed to merely speculative, favorable decision." Project v. EPA, that the injury will be redressed by a May 30, 2014) No. Nat'l 13-1035, Envtl. Dev. Ass'n's 2014 WL 2219065, at *3 Clean (D.C. Cir. (quoting Lujan v. Defenders of Wildlife, 555, 560-61 (1992)) Air 504 U.S. (quotation marks and ellipses omitted). There is no indication that Plaintiffs' increased workload in the past has had any lasting adverse effect. As the District Court for the Southern District of California held in a related case, "' [p] ast exposure to illegal show a present case or controversy . continuing, present adverse conduct does not . if unaccompanied by any effects. '" Wilkins States, No. 99-CV-1579-IEG (LSP), slip op. at 23 29, 2005) ("Wilkins Mem. Op. of June 29, - 21 - in itself 2005") v. United (S.D. Cal. June (quoting Renne v. Geary, 501 U.S. 312, 320-21 (1991)) (emphasis added)); aff'd, 232 F. App'x 710 (9th Cir. 2007). Furthermore, there is nothing in the record to suggest that the limited this Court could Plaintiffs Thirds declaratory provide sustained Policy. and in effective the " [W] hile injunctive relief, injunctive past remedies relief as a plaintiffs for result may available any of in injuries the alleged seek declaratory and they may not seek damages because the United States has not waived sovereign immunity for monetary relief for unconstitutional acts taken by government their official capacities." 13-1571, 2014 WL (citing Clark v. Cir. 1984)). immunity RFRA." 1022, 1026 at Cir. (D.D.C. 750 also damages 2006) n.2 Cong., (citing Webman v. (D.C. *3 government monetary acting in Leonard v. U.S. Dep't of Def., No. Library of "The for Id. 1689606, employees Apr. has resulting not 2014) 102-03 F.2d 89, 30, (D.C. waived from sovereign violations Fed. Bureau of Prisons, of 441 F.3d ("RFRA does not waive the federal government's sovereign immunity for damages.")). Consequently, if Plaintiffs prevailed, they would be limited to non-monetary relief for any constitutional violations resulting Policy. from the Navy's prior use of the alleged Thirds They have not identified any non-monetary relief that could remedy the fact that they were required to - 22 - "expend more effort" than their Liturgical colleagues a decade or more ago. 11 Nor have they identified any other injury related to the alleged Thirds Policy that the Court could redress through non-monetary relief. 12 In sum, because Plaintiffs' request for declaratory and forward-looking relief is moot and the Court is unable to issue any relief for the only injury they claim to have suffered in 11 Plaintiffs do allege that Non-liturgical chaplains are still underrepresented as a result of the alleged "Thirds Policy" and thus suggest that the Court can provide relief for the fact that they continue to shoulder a heavier workload. See Pls.' Opp'n to Defs.' P. Mot. to Dismiss at 33. But this contention finds no support in the record. As already noted, as of FY 2010, Nonliturgical Protestants made up more than 50 percent of the Chaplain Corps, whereas in 2011, personnel who self-identified as belonging to a Non-liturgical faith group constituted only 13 percent of the Navy. See May 20, 2011, Berto Decl., Exs. A & B. 12 Plaintiffs allege that the Thirds Policy "applied" to recruiting and accessions. See Consol. Compl. ~~ 35(b), 43; see also Decl. of Commander Timothy J. Demy, CHC, USN ("Demy Decl.") -r4 [Dkt. No. 178-4]. To the extent they suggest it also applied to other personnel decisions, see Consol. Compl. ~ 43, they have presented no evidence that it did, whereas Defendants have submitted an affidavit clearly stating that "[t]here [we]re no express or implied quotas for promotion based on faith" during the relevant time period. Affidavit of R.W. Duke at 4, Wilkins v. Lehman, No. 85-3031 (S.D. Cal. Jan. 16, 1986) ("Duke Aff. ") [Dkt. No. 172 -3] . Similarly, a promotion board precept dated June 23, 1987, states that boards must select officers who "giving due consideration to the needs of the Navy for officers with particular skills, considers best qualified for promotion," a standard to "be applied uniformly" to all candidates. FY 1988 Promotion Board Precept at 2 [Dkt. No. 160-8]. There is simply no evidence that the alleged Thirds Policy, or any other religious quotas or goals, impacted promotion, retention, or selective early retirement decisions. - 23 - the past, Plaintiffs have not established the existence of a "live controversy" pertaining to the Thirds Policy. Therefore, the Court See Sturm is without jurisdiction to consider it. Mem. Op. of June 18, 2002, at 6 ("While Plaintiff may take issue with Defendant's former accession practices, the pronouncing business of that past ' [w] e actions are not which have demonstrable continuing effect were right or wrong.'") in no (quoting Spencer v. Kemna, 523 U.S. 1, 18 (1998)), aff'd, 76 F. App'x 833 (9th Cir. 2003)). For these reasons, Policy shall be Plaintiffs' dismissed claim related to the Thirds for lack of matter subject jurisdiction. III. CLASS CERTIFICATION The Court will Certification. now consider Plaintiffs' Plaintiffs seek to certify a Motion for Class class of 2, 500 "present and former Non-liturgical Navy chaplains, duty and Reserve, includes, "careers have to active who were in the Navy or have served in the Navy" between 1976 and the present. class up but been is not Mot. at 3, 7. limited injured, to: (1) The proposed chaplains terminated or otherwise whose adversely affected by the Navy's and the CHC's unlawful bias and prejudice against Non-liturgical chaplains"; (2) chaplains who "saw or experienced the Navy's Non-liturgical bias and left active duty - 24 - or retired early rather than endure that bias and prejudice"; and (3) chaplains "who have not yet personally suffered career injury as a result of the practices and policies challenged here because manifestation of the injury has been delayed [.]" Mot. at 3-5. A. Legal Standard "The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." 2550 (2011) Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, (citation and quotation certification is governed by Rule Civil Procedure. inquiry: first, met; second, appropriate marks 23 of Class omitted). the Federal Rules of There are two components to the certification each of the four elements of Rule 23(a) must be certification under at of least enumerated in Rule 23 (b) . the one proposed of Richards v. the class three must be categories Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006). The proponent of class certification must prove by a preponderance of the evidence that the requirements of Rule 23 are satisfied. Court has pleading Wal-Mart, stated that standard"; certification must 131 "Rule S. Ct. 23 does rather, " [a] affirmatively - 25 - at The 2548. not set party demonstrate forth seeking [its] Supreme a mere class compliance with the Rule - that there fact are questions in of law is, [it] must be prepared to prove sufficiently numerous or fact, etc." Id. court must conduct "a at parties, that common 2551 (emphasis in rigorous analysis" to have met. original) The ensure This trial that the requirements of Rule 23 inquiry may overlap with an appraisal of been Id. the merits, for "it may be necessary for the court to probe behind the pleadings before (citing coming to Gen. Tel. (1982)). ranging rest on the certification question [.]" Co. of Sw. v. Rule 23 is not, however, merits inquiries [,]" the satisfied." Rule Amgen Inc. v. U.S. 147, 160, questions may only be "they are relevant to determining prerequisites 23 457 a "license to engage in free- and merits considered to the extent that whether Falcon, Id. Conn. for Ret. class certification are Plans & Trust Funds, 133 S. Ct. 1184, 1194-95 (2013). B. Rule 23 (a) Under Rule 23 (a) , demonstrate that: all fact ( 1) a plaintiff seeking certification must the class is so numerous that members is impractical; common to the class; (2) ( 3) there the are claims questions or joinder of of defenses law or of the representative parties are typical of the claims or defenses of the class; and ( 4) the representative parties - 26 - will fairly and adequately protect the interests of the class. Fed. R. 23 (a) . referred These four numerosity, requirements commonality, are commonly typicality, Civ. P. to as adequacy and of representation, respectively. The parties do not dispute that the numerosity requirement is satisfied; therefore, the Court confines its analysis to a discussion of the other three requirements. 1. Commonality Rule 23 (a) (2) requires the existence of Fed. or fact common to the class." requirement was the Wal-Mart. basis Wal-Mart of the involved a R. Civ. Supreme proposed "questions of law P. Court's class decision of current former female employees who alleged that Wal-Mart had a and uniform women to 'corporate culture'" infect, perhaps that "permit [ted] the subconsciously, This 23 (a) (2). in and "strong bias against discretionary decisionmaking of each one of Wal-Mart's thousands of managers thereby making every woman at the common discriminatory practice." The Supreme commonality. Court same victim of one this theory as a basis for It explained that the inquiry under Rule 23(a) (2) provision of proceeding the Wal-Mart, 131 S. Ct. at 2548. rejected is not whether class members the company [will] "have all suffered a violation of law [,]" generate but common - 27 - rather whether answers apt "a to classwide drive the resolution of the litigation." Id. at 2551 citation and internal punctuation omitted) . class members' (emphasis added and In other words, the claims must depend on a "common contention" that is "of such a nature that it is capable of classwide resolution - which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. (citations omitted). Quoting a prior decision, the Court observed that: Conceptually, there is a wide gap between (a) an individual's claim that he [sic] has been denied a promotion on discriminatory grounds, and his [sic] otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claim will share common questions of law or fact and that the individual's claim will be typical of the class claims. Id. at 2553 marks (quoting Falcon, omitted)). The Court theoretically be bridged by 457 U.S. at 157-58 acknowledged this "significant proof" (quotation gap that could Wal-Mart Id. "operated under a general policy of discrimination." It observed, however, that "Wal-Mart's announced policy forbids sex discrimination," that and the plaintiffs' consequently, the "only corporate policy evidence convincingly establishes is Wal- Mart's 'policy' of allowing discretion by local supervisors over employment matters." Id. at 2553-54. - 28 - A policy of local discretion, the Court concluded, did not satisfy the commonality requirement because it "is employment practices[,]" a policy and against having uniform the "demonstrating therefore, invalidity of one manager's use of discretion will do nothing to demonstrate the invalidity of another's." Id. at 2554 (emphasis in original). In this case, just as in Walmart, Plaintiffs do not allege that the Navy ever had an express policy against the advancement of Non-liturgical Protestants. an array of individual Instead, they rest their case on anecdotes they contend demonstrate a "pervasive pattern of religious preference." Yet the theories of these individual Individual Plaintiffs religious anecdotes vary conclude that believe discrimination widely. they themselves different faiths personnel system. Some were to who reflected of the discriminated be more fared in against qualified better in than the they disputes animosity, of Corps' Others complain of poor fitness reports and issued by their on they chaplains Chaplain unfavorable work assignments blame because interpersonal retaliation, superiors, combined with which religious and/or racial or gender discrimination. Yet others tell extended narratives of local command officers or senior chaplains interfering with - 29 - their ministry efforts, prayer, or worship styles for a variety of reasons they attribute to religious hostility. 13 These diverse circumstances and theories of discrimination undermine Plaintiffs' outset. could See, not show different jobs, variable states" e.g., 13 Wal-Mart, establish 131 8. Ct. they commonality at 2557 "held a at the (plaintiffs multitude at different levels of Wal-Mart's hierarchy, lengths of time, and were 2006) to commonality because subjected that all differed"); Cir. efforts in 3, 400 stores, "to a variety of Garcia v. Johanns, sprinkled across regional 444 F.3d 625, of for 50 policies 632 (D.C. ("Establishing commonality for a disparate treatment By way of illustration, one chaplain attributes his nonselection for promotion to rumors spread about his "stability and performance" following a referral for psychiatric evaluation after his "liberal" command Chaplain overheard him telling his wife that his ministry was "truncated by demonic forces personified by Chaplains." Addendum A to Consol. Compl. ~ 50. Four other chaplains stationed in Naples, Italy contend that they received poor fitness reports from Catholic superior officers for praying "in Jesus name." Id. ~~ 5, 10, 18, 62-63. A chaplain stationed in Okinawa, Japan from 1991 until 1993 claims that "his Liturgical Protestant rating chaplain gave him a poor fitness report" for failing "to support his rater's . prayer breakfasts" and "preaching that men who call themselves Christians should live as Christians." Consol. Compl. ~ 184(b). Another chaplain believes his non-promotion was retaliation by a Catholic board member who allegedly accused him of "stealing sheep" after baptizing a woman who asked to be baptized by immersion. Id. ~ 184(g). Another chaplain resigned after being investigated by the Navy for sexual harassment but attributes the investigation to religious discrimination. Addendum A to Consol. Compl. ~ 3 0. Two Hispanic chaplains claim to have suffered a combination of religious and racial discrimination. Id. ~~ 40, 54. These types of individualized allegations pervade the Consolidated Complaint. - 30 - class is particularly difficult where, as here, multiple decisionmakers with significant local autonomy exist.") Nevertheless, as our Court of Appeals has emphasized, commonality requirement "even a Columbia, 131 S. single common 713 F.3d 120, Ct. at 2556). whether Plaintiffs have is not question 128 a predominance will (D.C. do." Cir. Therefore, 2013) the requirement D.L. v. Dist. the and of (citing Wal-Mart, Court shall identified any common issue of consider law or fact tying their injuries together. 14 14 Plaintiffs argue that the Court's 2002 class certification decision in Adair, 209 F.R.D. at 10, is the "law of the case," thereby governing the Court's analysis on this Motion. Sur-SurReply at 6. The Adair Class Certification Order was vacated at Plaintiff's request on May 30, 2006, and is, therefore, no longer "law of the case." Coalition to End Permanent Congress v. Runyon, 979 F.2d 219, 221 n.2 (D.C. Cir. 1992) (once vacated, an opinion is "no longer law of the case") (Silberman, J., dissenting). Furthermore, in light of Wal-Mart, many of the Court's conclusions in Adair are no longer good law. For example, the Adair decision held that, "[i]n determining whether to certify a class, the court should not consider the underlying merits of the plaintiff's claims," and should "accept as true the allegations set forth in the complaint." Adair, 209 F.R.D. at 8. Wal-Mart, however, makes clear that "Rule 23 does not set forth a mere pleading standard" and the "party seeking class certification must affirmatively demonstrate [its] compliance with the Rule that is, [it] must be prepared to prove that there are in fact common questions of law or fact [.]" Wal-Mart, 131 S. Ct. at 2551 (emphasis in original). Similarly, in Adair, the Court based its commonality finding on Plaintiffs' allegations of "a pervasive pattern" of religious discrimination. Adair, 209 F.R.D. at 10. In Wal-Mart, however, the Supreme Court held that such allegations do not satisfy Rule 23(a) (2) unless there is "significant proof" that the defendant "operated under a general policy of discrimination." Wal-Mart, 131 S. Ct. at 2553. In fact, as our Court of Appeals recently - 31 - a. "Culture" of Denominational Favoritism Just as in Wal-Mart, Plaintiffs rely heavily on allegations of a pervasive 37. of prejudice" in the CHC. ~culture They argue that the individual culture faith case is the ~common Navy, s of prejudice against groups they unconstitutional systemic represent, and of and institutionalized chaplains see also id. ~organizational composed ~around of at 5, culture" shared 14, favoritism as 15, a. ~values, ,, ~set 28, of 29, [sic] " 31. the twin preferred for Mot. at They define common understandings," ~assumptions," which action is organized.,, and resulting the denominations and prejudice against Plaintiffs, 39; at 16, issue in each class member, s Non-liturgical message Mot. Mot. at and ~beliefs," 15-16 (citations omitted) Under Wal-Mart, this theory only satisfies the commonality requirement if the Navy,s culture of prejudice is so strong as to suggest that the Chaplain Corps operated under a ~general observed, ~wal-Mart 's interpretation of Rule 23 (a) (2) has changed the landscape" of class certification. D. L., 713 F. 3d at 126-27 (citations omitted). Con~equently, neither the Court,s 2002 certification order in Adair nor the other pre-WalMart commonality cases on which Plaintiffs rely are controlling. See Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625, 632 (D.C. Cir. 2010) (noting exception to ~law of the case" doctrine where there is an ~intervening change in controlling law"). - 32 - policy" of discrimination. 15 Plaintiffs have not come close to satisfying this demanding standard. First, the Navy's guiding clearly documents unequivocally seek to promote a culture of tolerance, For example, Standards" the Chaplain expressly state not bias. written the "Professional Chaplain Corps' that and Corps "is a religiously impartial governmental organization with no inherent theology of chaplains" its to own" which accommodate personnel of all faiths." further provide equally that "[i] t tolerant of every authorized persons exists "the to "empower requirements religious SECNAVINST 5351.1(5). is the policy Service 15 that of of The Standards member irrespective of individual the individual's CHC and to be other religious While Plaintiffs bring their discrimination claims under the First and Fifth Amendments, not Title VII as in Wal-Mart, they fail to offer any other viable theory as to how a class-wide determination of "culture" might resolve an issue central to their claims. They do not "allege hostile work environment claims under Title VII[.]" In re Navy Chaplaincy, 850 F. Supp. 2d 86, 116 (D. D.C. 2 012) ("In re Navy Chaplaincy II") . They argue vaguely that the Establishment Clause required Defendants to maintain a "denominationally neutral" culture. Reply at 9. But while they are correct that "[t]he government must be neutral when it comes to competition between sects," Zorach v. Clauson, 343 U.S. 3 06, 314 ( 1952) , they cite no authority for the proposition that the Government must go beyond a policy of neutrality to, in fact, achieve a denominationally neutral culture. Consequently, the Court considers Plaintiffs' "culture of prejudice" theory only insofar as it might demonstrate that the Navy operates under a "general policy" of religious discrimination. - 33 - beliefs or unbelief" and to endeavor to "accommodate the religious beliefs of all to the fullest possible extent." encl. 2 (2), (5) Likewise, "communicate institution (emphasis added). the the and Chaplain values serve and as religious Corps' that a throughout their careers," cultural Id. Guiding hold· the point of state that values that Principles, CHC together reference for which as an chaplains "[w] e seek to understand differ from our own" and "believe the right to exercise our faith is best protected when we protect the rights of all to worship or not worship as they choose." To Id., encl. 4. prove that a "culture of denominational favoritism" nevertheless exists, Plaintiffs rely primarily on affidavits and deposition chaplains testimony describe retaliation, in which particular they and instances other of Non-liturgical hostile treatment, and/or specific local command officers scheming to suppress, take over, or shut down their Non-liturgical services. See generally Addendum A to Consol. Compl.; Reply at 20-22; SurSur Reply at 2-3. However, Captain Lyman M. Smith, Executive Assistant to the Chief of Navy Chaplains, has submitted a declaration explaining that "[c] ommanding officers at the local level have ultimate responsibility for providing command religious programs" in each - 34 - of the "500 separate geographically dispersed duty assignments 11 served by the CHC, and "[n]either the Chief of Chaplains nor the Chaplain Corps controls the individual command programs which are in place at each duty station. Decl. at 2-3 [Dkt. No. 47-19] This . decentralized Principles tolerance and and and religious system, Professional combined stem Tel. & ("Substantial Tel. degree Co., of 628 and wholly from a F.2d "culture "[c]ommonality is religious Plaintiffs' perhaps of See, e.g., 267, 279 prejudice 11 Stastny v. (4th 1980) complete almost Cir. local . cuts against any inference for class action commonality purposes. (D.D.C. 2002) defeats Guiding experiences of discrimination autonomy in separate facilities F.R.D. 15, 22 clear requiring that is common to the class as a whole. S. Bell with Standards their individual intolerance Supp. Smith 11 (citing OPNAVINSTR 1730.1D). non-discrimination, suggestion that religious 11 ); Garcia v. Veneman, 211 (holding in discrimination case that defeated by the geographic dispersion of the decision-makers 11 large ) numbers and 16 Plaintiffs also cite to a declaration submitted by Captain Larry H. Ellis, "perception 11 in who refers, the without elaboration, mid-1990s "among to a general non-liturgical 16 chaplains Indeed, Plaintiffs themselves acknowledge that their individual experiences do not portray a "culture so much as "a series of individual incidents. Mot. at 16. 11 11 - 35 - that the Chaplain denominations Corps and against Captain Larry H. Ellis, was biased non-liturgical U.S.N. chaplains. (Retired) ~~ [Dkt. No. 160-6]; see also id. 6, liturgical toward 11. Aff. 11 ("Ellis Aff. However, of ~ 36 11 ) neither the Ellis Affidavit, nor the related Ellis Memorandum [Dkt. No. 13215] 1 suggest religious bias that Non-liturgical grew out of chaplains' an organizational perceptions culture that of is common to the CHC as a whole. 17 Thus, instances while of Plaintiffs religious may intolerance, have individual suffered there is no evidence to suggest their experiences reflect a culture that is consistent across time and space and common to the entire class. See Dukes 17 In some cases, such perceptions appear to have arisen only after individual chaplains spoke with their endorsing agencies or read documents related to this case and other similar cases. See, e.g., Decl. of Patrick M. Sturm~ 4 [Dkt. No. 178-7] (after "talking with my endorser, it became obvious that CFGC chaplains were not being treated fairly in the Navy Add. to Consol. Compl. at 22, 23 (only "[a]fter reviewing the issues and evidence related to this action, did "CH Hatch bee [o] me aware [of] the CHC' s biased policies id. at 26 (prior to reading documents related to this case, CH Hendricks "believed [that the Navy's] promotion system was fair, all records were competitive, and faith group was not important [to promotion] id. at 3 8 ("Prior to [hearing about the allegations in this case] , CH Mak "believed the Navy's . promotion system was fair and [that] faith group was not a factor in promotion decisions id. at 49 ( "CH Quiles thought his non-selection was 'the luck of the draw.' Through one of the co-Plaintiffs, he learned of the injustice done to him. id. at 67 ("Prior to hearing about th [is] litigation in 2002, CH Watson had no knowledge of the evidence showing religious bias[.] 11 ) ; 11 11 ); 11 ) ; 11 11 11 ); 11 ). - 36 - ); v. Wal-Mart Stores, Inc., 2013) on (concluding although plaintiffs' 964 F. Supp. 2d 1115, 1124 remand from anecdotes the Supreme (N.D. Cal. Court of discrimination that, "succeeded in illustrating attitudes of gender bias ·held by managers at WalMart, they failed to marshal significant proof that intentional discrimination was a general policy affecting the entire class") (emphasis added) . Therefore, of a Plaintiffs' individual anecdotes and allegations "culture of prejudice" do not provide "significant proof" that Defendants "operated discrimination," under policy general a as required under Wal-Mart. Wal-Mart, of 131 S. Ct. at 2553. b. Next, requirement policies Policies and Practices Plaintiffs purport by challenging the and practices denominational preferences that policies Navy's neutrality and religious "[e]ach of the the tolerance. challenged require Instead, practices allows personnel "result [ed] award They do not, expressly commonality specific allegedly in Reply at 11. the satisfy legality of that opportunities[.]" the to of however, in career dispute denominational they argue that denominational representatives to make subjective judgments for which there is no accountability and no process providing effective guarantees - 37 - that denomination does not enter into the decision." Reply at 20. Insofar as Plaintiffs challenge facially neutral policies, such as secret voting, the practice of cannot prevail the small size of selection boards, appointing two unless they chaplains establish motivated by discriminatory intent, "appear to endorse observer [ . ] ' " In religion re Navy original) in to each board, that the lack a the they policies are rational basis, eyes Chaplaincy and of III, a 738 or 'reasonable F.3d at 430 (emphasis in concluded, Plaintiffs either do not allege or have not shown a As our Court of Appeals recently likelihood of success on the merits as to any of these theories. Id. at 430 ("Given facially neutral policies and no showing of intent to discriminate, [plaintiffs] have not shown likelihood of success [on their Equal Protection claims].") at 431 ("We feel confident that i [a] id. reasonable observers . are most unlikely to believe that the policies convey a message of government endorsement."). For the same reasons, and because Plaintiffs make no further evidentiary showing in this Motion, they also have not presented such purposes "significant of the proof" commonality to support requirement - 38 - under theories Rule for 23 (a) (2). Therefore, Plaintiffs' attack on facially neutral policies does not infuse Rule 23 (a) (2) commonality into their claims. 18 Plaintiffs However, the also challenge evidence they the have so-called presented existence of such a policy is negligible. "1 to RC" policy. establish the It consists primarily of a chart they prepared reflecting the religious affiliation of promotion board members from 1977 Compl., Ex. 15 ("Prom. Bd. Chart") indicates that, from selection board included except for selection roughly FY in See 2002. [Dkt. No. 132-16] 1987 exactly boards until one FY included two Roman Catholic members. until Roman 1987 and FY The chart 2002, Catholic FY Consol. 1998, each member, which Prom. Bd. Chart at 5-13. The source of the information in the chart is unclear and there are significant gaps in the data presented. But even if the Court ignores these deficiencies, the chart does not suggest that Roman Catholics were overrepresented, favored, or treated differently than Non-liturgical board members in selection board appointments. To the contrary, board members served on selection boards it shows that 75 Non-Liturgical 18 from FY 1987 and FY In fact, this Court has already dismissed Plaintiffs' facial challenge to various selection board practices, leaving only the possibility of a challenge "as-applied" to "certain individual chaplains." See In re Navy Chaplaincy II, 850 F. Supp. 2d at 96. By definition, a claim that only applies to "certain individual chaplains" would not support commonality as to the entire class. - 39 - 2002, while only 48 Roman Catholic board members served during the same time period. Furthermore, at all See generally Prom. relevant specifically prohibited reason of gender, affiliation." Thus, times, "[e] xclusion race, there is ~ virtually mere a Chart at 5-13. Navy's regulations board membership origin, by religious or 4(a). in fact, such from no suggesting the Navy ever, allegation of the ethnic SECNAVINST 1401.3 Bd. in evidence the record had a "1 RC" policy, and the policy cannot provide a basis for policies are commonality under Rule 23(a) (2). Finally, Plaintiffs suggest that the Navy's inadequate in a way that affects the class as a whole because, although individual discretion of delegation, which fails to personnel specific See, all [sic] guarantees ensuring refer against discrimination. Plaintiffs selection Plaintiffs protect decisions e.g., are boards, to as that challenges is the policy of instances of ("The common theme in the neutrality to "denominationalism," individualized Reply at 10 religious delegated lack in of effective career impacting decisions."); Sur-Sur Reply at 2 ("Denominationalism is the Navy allowing its senior chaplain[s] to exercise their denominational bias without accountability."). - 40 - Notwithstanding "denominationalism" system, that Plaintiffs' Corps' personnel their theory of commonality boils down to a complaint the to Chaplain describe Corps lacks discriminatory decision-making Reply ("Each at 20 the of Chaplain label the of use effective by these protections individual against chaplains. challenged practices See allows denominational representatives to make subjective judgments for which there is no accountability and no process providing effective guarantees that denomination does not enter into the decision."). This theory of commonality is precisely the one rejected by Walmart and its progeny. corporate policy establishes local is the Wal-Mart's supervisors Constr. Co., that at plaintiffs' 'policy' of 2553-54 evidence allowing over employment matters.") 688 F.3d 898, contend[] See Walmart, 893 that Walsh has ("The only convincingly discretion Bolden v. i (7th Cir. 2012) by Walsh ("Plaintiffs[] 14 policies that present common questions, but all of these boil down to the policy of affording discretion to each site's superintendent - and Walmart tells us that local matter how discretion cleverly cannot lawyers support a may try variability as uniformity."). - 41 - company-wide to class repackage no local In sum, existence basis although Plaintiffs repeatedly cite to the alleged of for unconstitutional class "significant proof" "policies certification, and they practices" have not as a presented of any specific unconstitutional policy or practice that applied to them across the board as a class and produced a common legal injury. Therefore, they may not rely on such to policies or practices satisfy · the commonality requirement of Rule 23(a) (2). c. Statistical Evidence In their final effort to establish commonality, rely on statistical evidence purporting to show Plaintiffs religious disparities in personnel outcomes within the CHC. Statistical disparities alone generally are not proof that any particular plaintiff, been discriminated against. ("If much less the class as a whole, See, e.g., Bolden, has 688 F.3d at 896 [defendant] had 25 superintendents, 5 of whom discriminated aggregate data would show that black workers did worse than white workers - but that result would not imply that all 25 superintendents behaved similarly, commonality."). Consequently, so it would not demonstrate Plaintiffs' statistical evidence can satisfy the commonality requirement only if it is so stark as to indicate that the CHC "operated under a general policy of discrimination," Wal-Mart, 131 S. Ct. at 2553, or suggest to the - 42 - "reasonable group. observer" that the Navy has endorsed a religious In re Navy Chaplaincy III, 738 F.3d at 430. 19 As. this Court has already found, recently affirmed, Plaintiffs' and the Court of Appeals statistical to evidence the extent it is even statistically significant - "does not remotely approach the stark character" that might satisfy either of these tests. Id. at 429 ("[T]he disparity between 73.3% and 83.3% [promotion rates] does not remotely approach the stark character of the (1960)] 431 disparities or Yick Wo in Gomillion [v. Hopkins, [v. Lightfoot, 118 U.S. 356 364 U.S. 339 (1886)] ."); id. at ("Assuming arguendo that it is proper to see the 'reasonable observer' as a hypothetical person reviewing an array of the figures in this case would not lead him [or statistics . her] to perceive endorsement."). Furthermore, Dr. Leuba, Plaintiffs' expert, has expressly stated that his statistical analysis does not purport to show that discrimination infects every CHC personnel decision, but merely that "some bias will creep in" because he believes that chaplains of different faiths 19 "cannot avoid having their Because Plaintiffs bring their claims under the First and Fifth Amendments, not Title VII, disparate impact is not sufficient to sustain their claims; our Court of Appeals has held that they must demonstrate intentional discrimination or objective religious endorsement. In re Navy Chaplaincy III, 738 F. 3d at 429-30 (citations omitted) . - 43 - judgment tainted by their beliefs, denominationally neutral." dated Sept. 5, 2011 even when they See Decl. of 5, 2011, Leuba Decl. ") ("Sept. Harald try Leuba, at to be Ph.D. , 11, 21 [Dkt. No. 99-3] In fact, Dr. Leuba emphasizes discrimination on a promotion board indeed" and id. intentional, of the Navy's dated 2 8, knowing, individual Religious Nov. original) . 20 20 at 11, that he does that "would be "not intentional a RARE occasion opine that this is denominational discrimination on the part chaplains." Preferences, 2011, Therefore, at 45 Statistical Evidence Decl. [of Harald [Dkt. No. 147-10] Plaintiffs' statistical Leuba, of the Ph.D.] (emphasis evidence in does Dr. Leuba' s analysis also suffers from a series of methodological flaws, one of which is that he "made no attempt to control for potential confounding variables" other than religious denomination, such as "promotion ratings, education, or time service," that might account for the disparities he observed. In re Navy Chaplaincy III, 738 F.3d at 429 (observing that Dr. Leuba's analysis "does little for our analysis" because "[c] orrelation is not causation") (citation and quotation marks omitted); see also Sept. 5, 2011, Leuba Decl. at 21 ("The data show statistical correlation; they do not demonstrate intent or cause.") . This failure renders his analysis of little value in establishing that faith group membership is, in fact, the cause of the observed disparities. See Love v. Johanns, 439 F.3d 723, 731 (D.C. Cir. 2006) ("[T]here are countless other, nondiscriminatory explanations for any patterns in the USDA's lending data. Instead of conducting a relatively simple statistical analysis (such as a multiple regression) to control for any or all of these variables, [plaintiffs' expert] simply reported a series of elementary cross-tabulations, from which it is impossible as a statistical matter to draw meaningful conclusions.") (citations omitted) - 44 - not constitute "significant discrimination or religious proof" that intentional endorsement is or was religious Defendants' "standard practice." For all of the foregoing demonstrated the existence of a question why was I reasons, have not "common answer to the crucial disfavored." (emphasis in original) . Plaintiffs Wal-Mart, Consequently, 131 S. Ct. at 2552 they have not satisfied the commonality requirement of Rule 23(a) (2). 2. Typicality Plaintiffs also fail to satisfy the typicality requirement of Rule 23 (a) (3). This provision requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." commonality requirement, Like the Fed. R. Civ. P. 23 (a) (3). it seeks to "measure the degree of interrelatedness between the claims in a class action," but it "is more legal exacting because it requires sufficient factual and similarity between the class representative's claims and those of the class to ensure that the representative's interests are in fact aligned with those of the absent William B. Rubenstein, Newberg on Class Actions 2013). The typicality requirement class members." § 3:31 (5th ed. is satisfied only "if each class member's claim arises from the same course of events that led to the claims of the representative parties and each class - 45 - member makes similar legal liability." Pigford v. arguments Glickman, to prove the defendant's 182 F.R.D. 341, 349· (D.D.C. 1998). As discussed, Plaintiffs have not shown that their claims have even a single question of law or fact in common with any of the absent class members. to conclude that Consequently, their claims it would be impossible "arise from the same course of events" or are otherwise "typical" of the absent class members claims. See Falcon, 457 U.S. at 157-58 n .13 "commonality and typicality requirements (noting that the tend to merge") ; Daskalea v. Washington Humane Soc., 275 F.R.D. 346, 2011) met (typicality requirement not where 358 "members (D.D.C. of proposed class suffered a wide range of deprivations the and claim distinct injuries"); Webb v. Merck & Co., Inc., 206 F.R.D. 399, 408 together (E.D. and Pa. in (analyzing commonality and typicality concluding "[p] laintiffs were divisions, 2002) that employed different neither in different facilities more than a states, at met because in different different levels In essence, this action is within the company hierarchy. nothing and were consolidation individualized disparate treatment."). - 46 - of 20 accounts of In sum, Plaintiffs have also failed to meet the typicality requirement of Rule 23 (a) (3) . 2 l 3. The 23 (a) is Adequacy of Representation final requirement that "the for class representative certification under Rule parties will adequately protect the interests of the class." 23 (a) (4). that (1) fairly and Fed. R. Civ. P. "The adequacy requirement is satisfied upon a showing there is no conflict of interest between the proposed class representative and other members of the class, and (2) the proposed class representative will vigorously prosecute the Alvarez v. interests of the class through qualified counsel." Keystone Plus Constr. Corp., No. 13-602, 2014 WL 1400846, at *6 (D.D.C. Apr. "The inquiry requires 11, 2014) into the (citations and quotation marks omitted). adequacy district purpose of Rule 23 (a) (4) of representation, court's is close scrutiny, in particular, because to ensure due process the for absent class members, who generally are bound by a judgment rendered in a class action." Rattray v. Woodbury County, 614 F.3d 831, 835 (8th Cir. 2010). Defendants representatives 2 argue because that Plaintiffs "their paramount are not interest adequate in this Having concluded as much, the Court need not reach Defendants' challenge to Plaintiffs' "mix and match" theory of typicality. See Opp'n at 41-42. l - 47 - litigation is the advancement of their collective goal of institutional reform," which is not necessarily aligned with the individual interests of each class member. Opp'n at 45-46. The Court agrees. By bringing their claims in this Court, where they are limited to declaratory and injunctive relief, rather than in the Court of Federal Claims, where no such limits are present, and by further seeking to certify the class under Rule 23(b) (1) and (b) (2), Plaintiffs are jeopardizing the rights of individual class members to seek the full range of remedies to which they may be entitled. See Wal-Mart, 131 8. Ct. at 2559 (noting "perverse incentives for class representatives to place at risk potentially valid claims for monetary relief" in order to ensure class certification) . desire Plaintiffs' for wide-ranging institutional reform therefore may very well be in conflict with the interests of specific class members to obtain individualized and/or monetary relief. Furthermore, proposed class Plaintiffs members' have repeatedly interests in thei:J;" claims to their campaign for example, trial, rather Plaintiffs than a series adjudication institutional reform. expeditiously filed prompt subordinated of preparing this unsuccessful the of For case for motions for injunctive relief and related appeals, which have taken years to - 48 - resolve. 295 See Chaplaincy of Full Gospel Churches, (describing petitions") Plaintiffs' "prolonged series 454 F. 3d at of motions and (citations omitted). In 2006, further delaying any prompt adjudication of this lawsuit, Plaintiffs granting class moved this Court certification. to They vacate its acknowledge Order that one significant reason for that request was to permit their counsel to file Gibson as a new putative ju~isdiction and perceived as hostile to thereby avoid class action rulings their quest for of in a this separate Court institutional they reform. See Pl.'s Reply at 27; Pl.'s Opp'n to Defs. Mot. for P. Summ. J. at 30-31 [Dkt. No. 172] Thereafter, in 22 conjunction with Plaintiffs took further actions that progress of this case. the filing of Gibson, significantly delayed the For example, after the District Court sitting in the Northern District of Florida granted Defendants' motion to transfer Gibson to this Court, Court to appealed 22 stay the the Florida case while District their Court's Plaintiffs asked this counsel unsuccessfully transfer order to the Plaintiffs suggest that class decertification was a "logical" step because of the Court's "four-year delay in defining the class [.]" Pls.' Reply at 27. Yet there is no indication that Plaintiffs ever asked the Court to define the class or that its failure to do so resulted from anything other than the extensive including litigation surrounding other issues in the case, Plaintiffs' many Motions for injunctive relief. - 49 - Court of Appeals for the Eleventh Circuit. 4. Thereafter, Court to Plaintiffs transfer Gibson filed back yet to another the, Florida, which was also unsuccessful. 6. See Gibson Dkt. No. motion Northern in this District of See Gibson Dkt. Nos. 5 & These actions alone set the progress of this case back by approximately two years. Moreover, in 2006, able to in moving for class decertification in this case Plaintiffs stated that they were "no longer willing or represent representing the or to class" assume because the of burdens recent employment status and other life transitions. Vacate Order Granting Pls.' Dkt. No. 156]. Mot. inherent changes to in their See Pls.' Mot. to to Certify Class at 2 Plaintiffs have not explained why, [Adair having once abandoned their willingness to represent the class, they are now willing and able, once again, to serve as class representatives. Finally, the Court notes the existence different type of conflict of interest. Motion, Plaintiffs have deviated of an entirely In the context of this significantly from their original core allegation that the Navy's bias lies against Nonliturgical Protestants as a class. actually such as favors certain Baptists, "liberal" but They now argue that the Navy Non-liturgical disfavors "[t]heologically conservative" Non-liturgical denominations. - 50 - Protestants, Mot. at 17-18. more Plaintiffs' readiness to draw divisions among members of the proposed class strongly indicates that they cannot be fair and impartial representatives of the class as a whole. class members (or those of other "liberal" faiths) Baptist might have legitimate concerns that Plaintiffs will not zealously represent their interests. Cir. (D.C. See 1974) Phillips ("Class antagonistic in fact to, v. Klassen, members 502 whose F. 2d 362, 366 are interests or even 'potentially conflicting' with, the interests of the ostensibly representative parties cannot be bound, consistent with the adjudication 311 u.s. In taken 32, 41-42 sum, entirety, in their name." (1940)) Plaintiffs' raises requirements of serious due process, to (quoting Hansberry v. an Lee, 23 litigation questions record, as to considered whether in they its will properly protect and prioritize the welfare and interests of the class members, from their reform. Cf. especially to the extent determination to obtain broad E. Texas Motor Freight Sys. 23 such interests diverge scale Inc. v. institutional Rodriguez, 431 While the Court acknowledges that some of the named Plaintiffs are themselves Baptist, that fact does not resolve its concerns. Other Baptist chaplains, as well as chaplains of deriominations that Plaintiffs consider to be "liberal," may or may not agree with Plaintiffs' view that they are "favored" by the Navy's policies and may, in any event, be concerned that Plaintiffs' counsel will treat them differently from other members of the class. - 51 - U.S. 395, 405 (1977) (named plaintiffs' request for relief that was inconsistent with vote of class members and their "failure to protect the interests certification surely bears representation that of those class members strongly class on the members by moving adequacy for of the expect might receive") For all of the foregoing reasons, Plaintiffs have not demonstrated that they are adequate class representatives. C. Rule 23 (b) Even assuming Plaintiffs had the satisfied four prerequisites set forth in Rule 23(a), they would still bear the burden of establishing that the class is maintainable under one of the subdivisions of Rule 23 (b) . As discussed below, they also fail to meet this burden. 1. Under requiring Rule 23(b)(l} Rule the 23(b) (1), prosecution certification of separate is appropriate actions by where individual class members would run the risk of establishing "incompatible standards of 23(b) (1) (A); conduct" or where practical matter, other members not for the defendants, individual Fed. adjudications R. would, Civ. "as P. a be dispositive of the interests of the parties to would substantially impair or the individual adjudications or impede their ability to protect - 52 - their interests." "always some defendant Fed. R. Civ. P. 23 (b) (1) (B). risk'' that to conflicting individual Since there is actions may judgments on liability, expose a certification under subdivision (b) (1) (A) requires "something more namely, a legitimate separate establish risk that actions 'incompatible standards of conduct, '" actions 365 "'impossible or unworkable. '" (emphasis in original) (citing Newberg on Class Actions§ 4:4 2 may so as to make individual Daskalea, H. 275 F.R.D. & A. Newberg at Conte, (4th ed. 2002)) and Wal-Mart, 131 S. Ct. at 2558) The Court finds virtually no risk that prosecuting separate actions by individual class "incompatible standards of five district courts conduct" and two Plaintiffs' allegations members Courts establish would At for Defendants. of Appeals have least examined (or substantially similar ones) over the past decade and none has found the Navy's current policies to be unlawful, much less accepted Plaintiffs' such policies legitimate establish 24 in their entirety. 24 risk that incompatible Consequently, maintaining standards invitation to rewrite of separate conduct there actions for is no would Defendants. See In re Navy Chaplaincy III, 783 F.3d at 429-431, Larsen I, 525 F.3d 1; Larsen II, 887 F. Supp. 2d 247; Larsen v. U.S. Navy, 486 F. Supp. 2d 11 (D.D.C. 2007); Wilkins Mem. Op. of June 29, 2005, aff'd 232 F. App'x 710 (9th Cir. 2007); Sturm Mem. Op. of June 18, 2002, aff'd 76 F. App'x 833 (9th Cir. 2003); - 53 - Likewise, ability of contrary: have separate actions would not impair or impede the nonparties to protect their interests. Quite the allowing the case to proceed as a class action might preclusive effect for absent impairing their ability to protect class members, thereby their own interests. Wal- Mart, 131 S. Ct. at 2559 (noting that class certification under Rule 23 (b) (2) possibility members' created compensatory-damages "that claims individual would be class precluded litigation they had no power to hold themselves apart by from"). Requiring separate actions, however, will not prevent any absent class member from challenging the Navy's personnel practices or bringing an individual discrimination claim in the future. Consequently, Plaintiffs have not shown that the proposed class is maintainable under Rule 23(b) (1). 2. Rule class has generally Rule 23 (b) (2) 23 (b) (2) acted to the is or satisfied where "the party opposing the refused on class, so to act that corresponding declaratory relief final is grounds injunctive appropriate class as a whole[.]" Fed. R. Civ. P. 23(b) (2). (b) (2) indivisible class is the declaratory remedy warranted nature of the that apply relief or respecting the The "key to the injunctive or the notion that the conduct is such that it can be enjoined or declared unlawful only as to all - 54 - of the class members or as to none of them." 125 (citing Wal-Mart, 131 S. Ct. at D.L., 713 F.3d at 2557) (quotation marks omitted) . Rule 23 (b) (2) thus "applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant." (citing Wal-Mart, for class Thus, 131 S. Ct. at 2557). plaintiffs to Id. it is not enough "superficially structure[] their case around a claim for class-wide injunctive and declaratory relief . if as a substantive matter the relief sought would merely initiate a process through which individualized highly determinations of liability and remedy are made; relief would be class-wide in name only, and it would certainly Jamie S. v. Milwaukee Pub. not be final." this kind of Sch., 668 F.3d 481, 498-99 (7th Cir. 2012). As discussed above, Plaintiffs have not identified any "common harm suffered as a result of a policy or practice that affects each class member." Id. relief they seek under Rule 23(b) (2) Furthermore, the primary is an order declaring the results of each of their respective selection board proceedings "void ab initio." Assuming such an order is available under the - 55 - case law in this "final" relief to merely initiate Circuit, the a class process seek reinstatement, it certainly as a would whole. by which not constitute Instead, would chaplains individual it would new selection board proceedings, correction of their personnel records, and backpay. For these reasons, Plaintiffs have not shown that the proposed class is maintainable under Rule 23(b) (2). Rule 23 (b) (3) 3. Finally, Plaintiffs seek certification under Rule 23 (b) (3). Certification under questions of law over questions any this or subsection fact common affecting is to only appropriate class members individual where "the predominate members" and "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. 23(b)(3). duplicates "[T]he commonality demanding" the analysis and delves common issues to (citing Amchem Prods., and Barnes v. 2007)). 23 (b) (3) in many respects," "further into the the case." a class but 275 be and promote uniformity of - 56 - P. the "far F.R.D. more 113, certified decision as at 624 123 368 (1997) (D.D.C. under "only when it would achieve economies of time, and expense, Civ. importance of 521 U.S. 591, 242 F.R.D. should is relative Daskalea, Inc. v. Windsor, District of Columbia, Ultimately, inquiry predominance R. Rule effort, to persons similarly situated, bringing Corp., about without other 624 F.3d 537, sacrificing procedural undesirable 547 (2d Cir. results." 2010) fairness Myers v. or Hertz (citation and internal punctuation omitted)) Here, Plaintiffs under Rule 23 (a) (2) , have and failed to therefore, demanding" demonstrate commonality they necessarily fail requirement to satisfy the "far more of predominance. Furthermore, for all of the many reasons set forth above, class certification would not achieve economies of time, expense, but effort, instead would exponentially complicate the and case; place at risk individual claims of absent class members that may overlap with the allegations in the Consolidated Complaint; and jeopardize Defendants' on myriad Exercise rights fact-specific harm. In sum, to claims individualized determinations of discrimination Plaintiffs have also and failed Free to demonstrate that the proposed class is maintainable under Rule 23(b)(3). - 57 - IV. CONCLUSION For denied, the foregoing reasons, Plaintiffs' Motion shall be and their claim relating to the Thirds Policy shall be dismissed for lack of subject matter jurisdiction. September 4, 2014 Copies to: attorneys on record via ECF - 58 -
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
