IN RE: NAVY CHAPLAINCY, No. 1:2007mc00269 - Document 194 (D.D.C. 2014)

Court Description: MEMORANDUM OPINION to the Order on the Motions for Partial Summary Judgment. Signed by Judge Gladys Kessler on 9/26/14. (CL, )

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IN RE: NAVY CHAPLAINCY Doc. 194 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 Non-liturgical Protestant chaplains in the United States Navy, and a fellowship churches, of of their endorsing agencies, non-denominational Christian evangelical bring this consolidated action against the Department the Navy and several of Plaintiffs allege its officials. that Defendants discriminated against Non-liturgical Protestant chaplains on the basis of their religion, maintained a culture of denominational favoritism in the Navy, and infringed on their free exercise and free speech rights. This Motions matter for Defendants' is Partial Motion before the Court Summary Judgment. [Dkt. No. 159], on the Upon parties' Cross- consideration of Plaintiffs' Opposition and Cross-Motion [Dkt. No. 172], Defendants' Reply and Opposition to the Cross-Motion Cross-Motion for the [Dkt. [Dkt. reasons No. set No. 189], 182], and Plaintiffs' Reply to the and the entire record herein, forth below, Defendants' Motion shall and be granted and Plaintiffs' Cross-Motion shall be denied. Dockets.Justia.com I . BACKGROUND The Navy Chaplain Corps 1 A. The Navy employs a corps of chaplains "CHC") whose mission religion by members authorized persons. Cir. 2004) Navy to provide of the Navy, to for provide sailors involving chaplain's education, Marines and representative[]' a Manual Chapl,ains must and other 11 71 (D . C . counseling, advise commanders and on role within as the service clergy or a is 'unique, ' 'professional of a particular religious denomination and as commissioned naval Chaplains of Id. service simultaneous exercise 3 7 5 F . 3d 116 9 , religious, moral, and ethical issues. "A Navy free In accordance with this mission, religious and the their dependents, In re Eng 1 and, (citation omitted). chaplains support is ("Chaplain Corps" or officer." 1-2-1-3 have a Id. (Dep't of graduate 1 (citing OPNAVINST 1730.1, the level Navy Oct. theology 3, 1973)). degree or In setting out the disputed and undisputed facts on a motion for summary judgment, a court typically relies on the parties' Statements of Undisputed Material Facts submitted pursuant to Local Civil Rule 7(h). The parties in this case submitted Rule 7(h) Statements, but instead of setting forth facts related to the timeliness of Plaintiffs' claims (the only issue presented in this Motion), the parties submitted 139 pages of argument on the merits of Plaintiffs' claims. The Rule 7(h) Statements are therefore of little value for their intended purpose. Accordingly, the Court confines its factual recitation to basic undisputed background information set forth in the Plaintiffs' Consolidated Complaint and prior decisions issued in this case. - 2 - equivalent while also meeting the physical and educational requirements applicable to all commissioned officers. addition, chaplains must be endorsed by a faith-group endorsing agency as qualified to represent within the Chaplain Corps. There are Department "faith of Worship. over faith which particular faith groups the recognized Navy has group of: by the into grouped consisting categories" Protestant, that Id. at 1172. 100 Defense, group Liturgical 2012) In Id. four Roman Non-liturgical In re Navy Chaplaincy, Protestant, Catholic, and 697 F. 3d 1171, 1173 Special (D.C. Cir. ("In re Navy Chaplaincy II"). The Liturgical denominations Reformation, Protestant that trace practice category their infant includes origins to and baptism, Protestant the Protestant conduct services In re according to a prescribed liturgy or order of worship. England, 375 Episcopal, Compl. セ@ F.3d at Methodist, 6 (b) . 1172. and This group Presbyterian includes faiths. Id.; Lutheran, Consol. The Non-liturgical Protestant category includes Protestant denominations that do not follow a formal liturgy and baptize at the "age of reason," including Baptist, Evangelical, Pentecostal, Bible Church, and England, 375 F.3d at 1172; Consol. Worship group includes Charismatic Compl. denominations - 3 - セ@ not faiths. 6(c). In re The Special covered by the Protestant Hindu, and Roman Buddhist, Mormon, and Churches v. Muslim, England, セ@ categories, Jehovah, s Unitarian Consol. Compl. B. Catholic faiths. 454 including Witness, Jewish, Christian Science, Chaplaincy of Full Gospel 295 n.3 (D.C. Cir. 2006); F.3d 290, 6 n.5. The Navy's Personnel System Chaplains enter the Navy through a civilian clergy program or a theological Thereafter, student they are program. subject to Consol. the セ@ Compl. same personnel 44 (c) . system as other naval officers and must be selected for promotion in rank when the needs of the service require. at 1172 (citing 10 U.S.C. In re England, 375 F.3d 611(a)) § If considered but not selected for a promotion, to have "failed of selection." Churches, 454 F.3d at 293. an officer is he or she is said Chaplaincy of Full Gospel After failing of selection on two or more occasions, an officer is subject to involuntary separation, known as (b) . early retirement." Bウ・ャセ」エゥカ@ However, the Navy may elect active duty despite needs require. two or more See 10 U.S.C. § to See 10 U.S.C. continue failures § 632 (a)- an officer on of selection as its 632 (c) (2). Each of these decisions regarding a naval officer s career 1 promotion, active duty selective is made early by retirement, a - 4 "selection - and continuation board" composed on of superior officers who act pursuant to statute and regulations u.s.c. prescribed by the Secretary of Defense. See 10 612. 2 selection Under the of seven composed officers. current procedures, members : two chaplains 611, boards are five other 697 F. 3d at 1173. In re Navy Chaplaincy II, and §§ Each board member takes an oath to perform his or her duties "without prejudice fitness u.s.c. or of partiality and officers and the having in view both efficiency of the special [the Navy] " 10 and "may be 613. § Selection board proceedings are secret disclosed to any person not a member of the board, not except as authorized or required to process the report of the board." u.s.c .. § 614 (a). discussions, In furtherance deliberations, notes, of this mandate, and records are 10 board statutorily immune from legal process and "may not be used for any purpose" in any judicial or administrative proceeding without the consent of the Secretary of the Navy. 10 U.S.C. 2 § 613a. Selection boards operate differently depending on the rank and type of personnel action under consideration. See generally 10 U.S.C. §§ 611, 612. Unless otherwise stated, the Court will use 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 - C. Plaintiffs' Claims Plaintiffs challenge several current and historical aspects of the CHC's personnel system. The following is an illustrative sampling of their claims. 3 First, they recognized Consol. by Compl. contend the セ@ Navy 33-38. that the are faith group categories and arbitrary. discriminatory In particular, they claim that the categories reflect neither religious demographics nor legitimate similarities or differences among the in the past traditions worship represented. Second, they allege that (but not since at least 2002), the CHC used religious quotas to apportion chaplain opportunities among various faith groups. 35. In particular, they allege that, セ@ Consol. Compl. from 1976 until 331986, Defendants implemented a policy of appointing at least two Roman Catholic chaplains to every board (the "2 RC Policy") a similar chaplain Compl. セ@ policy to every 8, 57(e). of career-grade and, board selection from 1986 until 2002, maintained appointing such chaplain at (the least one "1 Policy") . RC Roman Catholic Consol. According to Plaintiffs, the "1 RC" and "2 Plaintiffs' Consolidated Complaint exceeds 120 pages and asserts eighteen separate counts. For purposes here, the Court confines its discussion to the claims Defendants contend are time-barred. - 6 - Policies RC" proceedings were against designed to Non-liturgical selection "stack" candidates board and in favor of Roman Catholic and Liturgical Protestant chaplains despite their Consol. allegedly declining numbers in the broader population. Compl. ᄋセ@ 57 (e)- (g) . 4 Defendants deny that such policies ever existed. Third, Plaintiffs personnel practices - challenge a number of both current and historical believe have allowed religious bias outcomes. boards; (1) include: to the infect small - that they selection board size of selection (2) the placement of two chaplains on each board, one of whom is deputies; which These facially neutral either and board the (3) Chief the members confidence in a use Chaplains of "secret anonymously or one of confidence indicate their his or her voting," in degree of candidate in 25-degree increments ranging from zero to one hundred. taken together, of Plaintiffs "enable[] claim that these practices, each board's chaplains to ensure that a particular candidate will not be promoted, thus increasing the 4 Plaintiffs also originally alleged that,· between 1986 and 2000, the Navy employed a so-called "Thirds Policy" under which it reserved roughly one third of chaplain opportunities to Liturgical Protestants, one third to "Non-liturgical faith groups," and one third to "Others," including Catholics. Consol. Compl. セ@ 33, 35, 43. However, the Court has recently dismissed that claim for lack of subject matter jurisdiction. See In re Navy Chaplaincy, No. 7-269, 2014 WL 4378781, at *6-9 (D.D.C. Sept. 4, 2014) ("In re Navy Chaplaincy V"). - 7 - odds for their preferred (and discriminatory) results." Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013) In re ("In re Navy Chaplaincy IV"). Plaintiffs also challenge a practice, which they concede has not existed since 2002, in which "each selection candidate's three-digit displayed Compl. セ@ 'faith group throughout 86. the identifier' selection code board was prominently Consol. process." Plaintiffs contend this practice had no purpose other than "to identify a candidate's faith group to the board" for purposes of permitting the board members "to exercise their individual or faith group chaplains or faith groups, chaplains." セ@ Id. prejudice for or against other particularly against Non-liturgical 87. Fourth and finally, Plaintiffs seek relief relating to a variety of specific instances, many of which date back as far as the 1970s and discrimination Chaplain Corps. 41. 1980s, and free in which exercise they harm suffered allegedly while serving See Addendum 1 to Consol. Compl. セ@ in the 12, 21, 37, These include occasions on which Plaintiffs claim to have been: (1) retaliated against, criticized, and removed from their posts based on the content treated differently from Liturgical chaplains with disciplinary and benefits; issues of their employment - 8 - religious teachings; (3) (2) respect to required to officiate general at Liturgical policies disfavored that, while certain aspects generally id. セ@ D. services; of and/or not subjected (4) facially their worship to discriminatory, traditions. See 1-65. 5 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");· and ("CFGC"); Gibson Adair v. v. Dep't England, of Navy, Civ. Civ. No. 00-566 No. 06-1696 ("Gibson") . CFGC QYセ@ and Adair were and March 17, filed 2000, in this Court respectively, on November and were 5, consolidated for pretrial purposes on September 26, 2000 [Adair Dkt. No. 21]. On filed April 28, 2006, Plaintiffs' separate putative class Florida, and case that action was 2006, at 1 in the Northern subsequently District pursuant to 28 U.S. C. August 17, counsel § 1404. [Gibson Dkt. No. 5 Gibson District transferred See Mem. 1]. as to a of this Order, dated On June 18 , 2 0 07 , In addition to the above claims, Plaintiffs also contend that Defendants fraudulently concealed "evidence of prejudice and bias in the selection process," and that the statute mandating secrecy in selection board proceedings, 10 U.S.C. § 613a, is unconstitutional as applied to them. See Consol. Compl. セ@ 187203, 218-224. However, the only specific relief they seek in relation to these claims is the removal of certain impediments to litigating this case. - 9 - the Court consolidated all three actions, raise "substantially similar Navy Chaplaincy program." concluding that they constitutional challenges to the Mem. Order, dated June 18, 2007, at 4 [Dkt. No. 11]. Approximately six months after Adair was filed, moved to dismiss a number of Plaintiffs' claims, Defendants arguing, they do in this Motion, that the claims are time-barred. Dkt. No. 19]. on [Adair On January 10, 2002, the Court denied that Motion without prejudice, barred as their finding that although the claims were timeface, Plaintiffs alleged equitable tolling of the limitations period. 183 F. Supp. 2d 31, 54-55 (D.D.C. 2002) facts to support Adair v. England, ("Adair I") . 6 Shortly thereafter, the Adair Plaintiffs filed a Motion for Class Certification, which the Court granted on August 19, 2002. See generally ("Adair II"). Adair v. England, 209 F.R.D. 5 (D.D.C. Approximately one week after Plaintiffs' 2002) counsel filed Gibson as a separate putative class action in the Northern District of Florida, however, the 6 Adair Plaintiffs moved to Defendants again raised their statute of limitations defense in 2 0 03, in opposition to the Adair Plaintiffs' Motion to Amend their Complaint, and the Court again rejected it as premature. The Court promised, however, to "reconsider the defendants' argument regarding the statute of limitations if the defendants raise it in a motion for summary judgment after the close of discovery." Adair v. Johnson, 216 F.R.D. 183, 188 n.8 (D.D.C. 2003) ("Adair III"). - 10 - vacate the Class Certification Order granted by this Court on August 19, 2002, on the basis that they were "no longer willing to represent Vacate On the class." セオエ。ゥカ・@ [Class Certification] May 30, 2006, the See Order at Court 1 granted Adair Pls.' [Adair Dkt. that decertified the proposed class in Adair. Motion Mot. No. to 156] . and then See Adair Minute Order of May 30, 2006. 7 Between 2002 and 2009, the parties conducted discovery, interspersed with collateral litigation and three interlocutory In 2012, Judge Ricardo Urbina, the appeals to the D.C. Circuit. District Judge previously assigned to this case, retired and the case was reassigned to the undersigned. on October 3, [Dkt. No. 2012, 134] Plaintiffs comprised of At the Court's request, filed a all the Consolidated Complaint claims at issue in the consolidated case. On February 22, for 2013, Partial Judgment defense their Partial 7 [Dkt. Summary No. Opposition Summary 159]. to Defendants filed the present Motion on On April Defendants' Judgment their [Dkt. 5, statute 2013, Motion No. 172] . and of limitations Plaintiffs filed Cross-Motion On May 22, for 2013, After Gibson was transferred to this Court, Plaintiffs filed a Renewed Motion for Class Certification, which the Court recently denied in light of the Supreme Court's intervening decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). See In re Navy Chaplaincy V, 2014 WL 4378781, at *9-20. - 11 - Defendants filed their Reply to the Motion and Opposition to the Cross-Motion [Dkt. No. 182]. On July 1, 2013, Plaintiffs' filed their Reply in support of their Cross-Motion [Dkt. No. 189]. II. LEGAL STANDARD A party may move for summary judgment as to any claim or defense, or I?art thereof, and the motion should be granted if the movant establishes that there is no genuine dispute as to any material fact and the issue may be resolved as a matter of law. Fed. R. Civ. P. 56(a) over it .might law [.]" affect Holcomb v. (quoting Anderson (1986)). v. the Powell, "A fact is 'material' if a dispute outcome of a suit 433 F.3d 889, Liberty Lobby, under 895 Inc., (D.C. 477 governing Cir. U.S. 2006) 242, 248 A dispute is "genuine" if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id. The party seeking summary judgment "bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). Inc., v. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion record," by citing including to particular parts depositions, of materials documents, in the affidavits, admissions or other materials, or by "showing that the materials - 12 - cited do not dispute, or establish the that an absence adverse party evidence to support the fact[.]" the movant meets its or presence cannot of produce a genuine admissible Fed R. Civ. P. 56 (c) (1). burden, the opposing party If must ·come forward with evidence of specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In deciding a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not evidence." credibility determinations Reeves v. Sanderson Plumbing Prods., 133, 150 (2000). evidence make in of the plaintiff's insufficient" to survive summary judgment. against after a party 530 U.S. position will be Liberty Lobby, Inc., As the Supreme Court stated in Celotex Corp., "the plain language of Rule 56 (c) judgment, Inc., the However, "the mere existence of a scintilla of support 477 U.S. at 252. or weigh adequate who time fails to mandates the entry of summary for discovery and upon motion, make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." 477 U.S. at 322. - 13 - III. ANALYSIS Relying on the six-year statute of limitations set forth in 2 8 U.S. C. § 24 01 (a) , Defendants argue that many of Plaintiffs' claims are time-barred, after finalization having been filed more than six years of the policies and personnel actions on which they are based. Plaintiffs U.S.C. § agree that their claims are governed by 28 2401(a), which provides that a "civil action commenced against the United States shall be barred unless the complaint is filed within accrues." claims 28 U.S.C. did not discriminatory that six such nature are they untimely, § after 2401(a). accrue claims 。ャエ・イョセカL@ years until of the right of first They argue, however, that their they discovered the CHC's practices timely under Section contend action that even if the allegedly and, therefore, 2401 (a) . In their claims the are the Court should apply equitable tolling doctrines to permit them to proceed. If, the as Defendants policies became final, and argue, personnel many of such language of Section 2401 (a) . Plaintiffs' actions on claims are claims which they barred In particular, accrued when by are based the plain unless a tolling rule applies, Defendants would be entitled to judgment in their favor on: all CFGC claims based on policies or personnel actions - 14 - finalized prior to November 5, 1993; all Adair claims based on policies or personnel actions finalized prior to March 17, 1994; and all Gibson claims based on policies or personnel finalized prior to April 28, 2000. Consequently, when Plaintiffs' the Court See Defs.' Mem. at 8-11. shall first address the issue of claims accrued for purposes of triggering the six-year limitations period in Section 2401(a). address actions Plaintiffs' argument that the Then, limitations it shall period in Section 2401(a) should be equitably tolled. A. Accrual 1. In Plaintiffs' Claims Accrued When the Challenged Policies and Personnel Actions Became Final general, a claim complete and present obtain relief[.]" (D.C. Cir. 20l2) accrues when cause of action" "the and plaintiff "can file has suit and Earle v. Dist. of Columbia, 707 F.3d 299, 305 (citation and quotation marks omitted). In employment discrimination cases such as this one, rule yields different theory at issue. a claim a results depending on the this specific legal In particular, the Supreme Court has held that challenging a facially neutral employment policy as intentionally discriminatory under Title VII of the Civil Rights Act of 1964, accrues on the date the policy becomes final, the date it is applied to the plaintiff. - 15 - not See, e.g., Lorance v. AT & T Technologies, contrast, under a Title 618, (1986)), 490 U.S. claim challenging a plaintiff. U.S. Inc., VII accrues See 634 when Ledbetter v. (2007) 900, 905 By facially discriminatory policy the policy is Goodyear Tire (citing Bazemore v. applied Pub. L. No. to the Co., 550 478 U.S. 385 Rubber & Friday, superseded by statute on other grounds, Fair Pay Act of 2009, (1989). Lilly Ledbetter 111-2, 123 Stat. rules, the 5, 42 U.S.C. §2000e-5 (e). 8 In light of these different Supreme Court has "stressed the need to identify with care the specific employment practice that for is at any particular issue" before determining the accrual date Id. claim. at 624 (citing Nat' 1 Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 110-11 (2002)). In advocating the parties have for their neither employment practice [s] addressed the respective "identif [ied] that [are] possibility that 8 at approaches with issue" different care to accrual, the specific in each claim nor rules apply to Although Plaintiffs do not rely ori Title VII of the Civil Rights Act of 1964, the essence of their claims is that they were discriminated against on the basis of their religion. Therefore, and in the absence of any authority directly on point, the Court relies on accrual principles developed in the Title VII context. See Veitch v. England, 471 F.3d 124, 127 (D.C. Cir. 2006) (relying on Title VII principles to evaluate former Navy chaplain's constructive discharge claim under the First Amendment) . - 16 - different claims depending on whether facially facially discriminatory practices are at issue. neutral or Defendants are correct, however, that under any of the rules articulated by the Supreme Court in the controlling cases set forth above, Plaintiffs' claims could accrue no later than the date on which the policies became final . and personnel See, 53 6 U.S. at 112-13; 449 U.S. 250, Title VII decision and was 258 e.g., Ledbetter, which they 550 U.S. are at 637; based Morgan, Ricks, (employment discrimination claim under U.S.C. made on see also Delaware State College v. (1980) 42 actions and § 1981 accrued communicated to at time [the "the tenure plaintiff]") . Therefore, the Court will apply that accrual rule to Plaintiffs' claims. 2. The "Discovery Rule" Does Not Apply Invoking the "discovery rule" rule set forth above not accrue until cases which, they discovered the 1221-22 allegedly discriminatory Pls.' Opp' n at 21-22; Pls.' The discovery rule is most often reserved for tort unlike difficult to discover. 1216, a variant of the general Plaintiffs argue that their claims did nature of the practices at issue. Reply at 17. - (2013); this case, involve injuries that are See, e.g., Gabelli v. S.E.C., 133 S. Ct. Kifafi v. Hilton Hotels F.3d 718, 729 (D.C. Cir. 2012) - 17 - Ret. Plan, 701 Even assuming, to this case, it however, that the is discovery "of the injury, other elements of a claim [that] Wood, 52 8 U.S. "discovery rule" 549, 555-56 the not Rotella v. starts the clock." (2 00 0) applied There is (emphasis added) nothing in this record to suggest Plaintiffs were not on notice of their employment injuries at the time they occurred. 9 Attempting to avoid this conclusion, Plaintiffs seek to recharacterize their injury, arguing that it "is not the failure of selection," but the "realization that the Navy's decision reflects an official position" that is "based on or tainted with forbidden denom.lnational biases or prejudice." 16-17. Pl s . ' Opp' n at This argument fails as well. Our Court of Appeals has expressly rejected the contention that emotional harm "suffered on learning of the government's constitute[s] alleged malfeasance postponing accrual of a Cir. 1987) Sexton v. United States, Therefore, F.2d 629, 637 discovers, or should have discovered, 9 (D.C. claim. an independent injury" the 832 "an employee who injury (the adverse Plaintiffs concede that "[they] knew they had failed of selection" when the selection board decisions were announced. Pls.' Opp'n at 23. By the same token, they also knew when they were assigned to inadequate or unsuitable religious facilities; when they were chastised or disciplined based on the content of their religious teachings; and when they experienced the many other acts of discrimination and Free Exercise violations alleged in their Consolidated Complaint. - 18 - employment decision) need not be aware of the unlawful discriminatory intent behind that act for the limitations clock to start ticking." F. 3d 1174, 1177 Almond v. (lOth Cir. Unified Sch. 2011); Dist. No. 501, 665 see also Coppinger- Martin v. Solis, 627 F.3d 745, 749 (9th Cir. 2010) (same) (citing cases) . 10 In sum, the discovery rule is not applicable to Plaintiffs' claims and, in any event, leads to precisely the same conclusion as the general rule: Plaintiffs' claims accrued no later than the date on which the policies and personnel actions at issue became final. 3. Plaintiffs The "Continuing Violation Doctrine" Does Not Apply also urge the Court to apply the violation doctrine" to the accrual of their claims. at 17. This doctrine - "continuing Pls.' Opp' n another variant of the general rule - stems from judicial recognition that certain events cannot made the subject of a lawsuit when typically because it is only [they] [their] 10 "be first occur[] cumulative impact Plaintiffs' related argument, Pls.' Reply at 3, 16, that their claims did not accrue until they obtained concrete proof of discrimination is also easily rejected: accrual does not depend on the quantum of evidence in a plaintiff's possession. As the Supreme Court held in Rotella, such a rule "would undercut every single policy" in favor of a statute of limitations and "doom any hope of certainty in identifying potential liability." Rotella, 528 U.S. at 555-56. - 19 - that reveals (citing [their] Taylor v. illegality." FDIC, 132 Earle, F.3d 753, made clear, 707 765 F.3d (D.C. at Cir. 306 1997); Morgan, 536 U.S. at 115-16)). The Supreme doctrine, Court has however, that this which is almost exclusively applied to hostile work environment claims discrimination under claims actions ·because a Title based VII on "discrete specific apply not does I adverse to employment retaliatory or discriminatory act 'occur[s] on the day that it 'happen[s] '" and is "not actionable if time barred, even when timely filed charges." [it is] Morgan, related to acts alleged in 536 U.S. at 110-11; see also Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011). Plaintiffs do not bring any hostile work environment claims under Title explanation applicable VII, as to and why they the fail to offer any "continuing violation doctrine" to their First and Fifth Amendment claims discriminatory employment decisions and specific harms. Their central persuasive argument is that free is alleging exercise evidence of discrimination could not "come to light" until they performed a "detailed statistical analysis of the chaplain promotion board results over long periods of time." just a variation of their Pls.' Opp'n at 18. previously - 20 - rejected This is argument that their claims did not accrue until they discovered evidence of the Navy's alleged discrimination. Furthermore, the See supra note 10. continuing violation doctrine applies "claims that by their nature occur not but 'over Laborers' 2007) a series Health (emphasis & of days or added). It 'on any particular day' perhaps Safety Fund, 478 does years [ . ] " F.3d 364, not to 368 apply to search for evidence to prove a discrete claim. Mayers (D.C. v. Cir. the cumulative See Rotella, 528 U.S. at 555-56. 11 In sum, the injuries of which Plaintiffs complain - failure of selection, selective early retirement, and specific instances of free exercise harm - are "discrete," even if they are alleged to have been "undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period." 58 Chin v. Port Auth. of N.Y. & N.J., (2d Cir.. 2012), cert. denied, cases) . Accordingly, the 685 F.3d 135, 157- 133 S. Ct. 1724 "continuing violation (2013) (citing doctrine" is inapplicable to the facts of this case. 11 The Court, of course, makes no findings as to the scope of the evidence on which Plaintiffs may rely to support their timely claims. See Chin, 685 F. 3d at 150 (noting that the plaintiffs could rely on "data ·from outside the statute of limitations to prove timely discriminatory acts") (citation omitted). - 21 - B. Equitable Tolling of the Limitations Period Is Denied Having concluded that Plaintiffs' claims accrued no later than when the policies and personnel final, all claims of Plaintiffs actions accruing more at issue became than six years before the commencement of each case are time-barred unless a tolling rule applies. Plaintiffs advance two discrete arguments related to such tolling. First, they contend that the limitations period for each of the three consolidated cases should be equitably tolled because Defendants wrongdoing. "fraudulently Second, they contend that alleged their concealed" the "class action tolling" doctrine adopted by the Supreme Court in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974) and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349 (1983) should be applied to Gibson, which would toll the limitations period for the Gibson Plaintiffs during the pendency of the Adair class action. Defendants extend the counter that limitations the Court period· in compliance with that provision is a of the Government's waiver of argue that, Plaintiffs even fail to if the present lacks any authority to Section 2401(a) "jurisdictional" sovereign immunity. Court does evidence - 22 - have from condition They also such which because a authority, reasonable juror could conclude that either tolling doctrine applies to the facts of this case. Our Court reaffirmed, of Appeals has that Section 2401 (a) limitations" because it "long held," is unlike a "'creates a and recently "normal statute of jurisdictional condition attached to the government's waiver of sovereign immunity" "cannot be equitable (D.C. waived Under the extensions. Cir. Eng'rs, by 2014) Mendoza (citing P 516 F.3d 1021, this clear parties" and & 1026 v. and (D.C. controlling is Cir. not subject 754 Perez, V Enters. that F. 3d 1002, v. U.S. 2008) precedent, to 1018 Army Corps of (citing cases)) . 12 a district court lacks any authority to extend the limitations period for claims governed by Section 2401 (a) . Gravel Co. v. United States, that court a "jurisdictional" to consider Id.; 552 U.S. statute whether of certain 12 see also 130, 134 John (2008) limitations equitable R. Sand & (observing "forbid[s] a considerations The Court of Appeals has acknowledged that it has "recently questioned the continuing viability of this holding in light of recent Supreme Court decisions" holding that statutes of limitations in actions against the Government are subject to the same rebuttable presumption of equitable tolling applicable to suits against private defendants. Mendoza, 754 F.3d at 1018 n.11 (citing P & VEnters., 516 F.3d at 1027 & n.2; Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007)); see also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990)). However, unless and until the Court of Appeals "resolve[s] this issue," Mendoza, 754 F.3d at 1018, this Court is bound by the law at it currently exists. - 23 - warrant extending a limitations period") . Consequently, Plaintiffs' claims for equitable tolling shall be denied. 13 IV. CONCLUSION For the foregoing reasons, Defendants' Summary Judgment shall be granted, Motion for Partial and Plaintiffs' Cross-Motion shall be denied. Jb. September セ@ 2014 Copies to: attorneys on record via ECF 13 Having so concluded, the Court shall not reach Defendants' alternative argument that the doctrines of equitable tolling based on fraudulent concealment and class action tolling are not properly applied to the facts of this case. - 24 -

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