                          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, their endorsing agencies, and

    a fellowship of non-denominational Christian evangelical churches,

    bring this consolidated action against the Department of the Navy

    and several of its officials.              Plaintiffs allege 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 matter is before the Court on Plaintiffs'                    Motion for

    Modification    and/or     Clarification       of     the   Court's   Decision   to

    Dismiss   Certain    Plaintiffs       under    the     Statute   of   Limitations

    ("Motion")   [Dkt.   No.    203 J      Upon consideration of          Plaintiffs'

    Motion,   and   Plaintiffs'         Errata    [Dkt.     No.   206],   Defendants'

    Opposition to the Motion [Dkt. No. 208],                Plaintiffs' Reply [Dkt.

______ No._ :212L and the entire record herein,            and for the reasons set   - - -




    forth below, Plaintiffs' Motion shall be denied.
I .      BACKGROUND

         A brief       recitation of   the     facts    is   necessary      to    resolve

Plaintiffs' Motion. For a more detailed summary of the facts and

procedural history, see this Court's September 26, 2014 Memorandum

Opinion resolving the Cross-Motions for Summary Judgment [Dkt. No.

194] .

         This consolidated case is composed of three cases filed by

the same counsel: Chaplaincy of Full Gospel Churches v. England,

Civ.     No.   99-2945     ("CFGC");   Adair v.        England,     Civ.    No.    00-566

("Adair");      and      Gibson   v.   Dep't     of     Navy,     Civ.     No.    06-1696

·("Gibson"). 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 26,               2000    [Adair Dkt. No.          21]. On

April 28,      2006,     Plaintiffs'   counsel filed Gibson as a separate

putative class action in the Northern District of Florida,                            and

that case was subsequently transferred to this District pursuant

to 28 U.S.C.       §    1404. See Mem. Order, dated August 17, 2006, at 1

[Gibson Dkt. No. 1].

         On June 18, 2007, the Court consolidated all three actions,

concluding that they raise "substantially similar constitutional

challenges to the Navy Chaplaincy program." Mem. Order, dated June.

18, 2007, at 4          [Dkt. No. 11]. Between 2002 and 2009, the parties

conducted discovery,          interspersed with collateral litigation and
                                        - 2 -
     three interlocutory appeals to the D.C.                  Circuit. At the Court's

     request,     on October    3,   2012,     Plaintiffs       filed    a   Consolidated

     Complaint [Dkt. No. 134] comprised of all the claims at issue in

     the consolidated case.

             On September 26,    2014, the Court granted Defendants' Motion

     for Partial Summary Judgment,            finding that many of Plaintiffs'

     claims were time-barred. 1 See Memorandum Opinion on Motions for

     Partial Summary Judgment         ("Summary Judgment Opinion") [Dkt.                No.

     194] . The Court also ordered the parties to submit a joint Notice

     identifying the     remaining        claims     following    its Order.     Id.    The

     parties submitted their Notice on October 24, 2014 [Dkt. No. 199]

     and a Status Conference was held on November 5, 2014.

             On November 19,    2014, Plaintiffs filed their present Motion

     for Modification and/or Clarification [Dkt. No.                    203]. Defendants

     filed    their   Opposition     on    December     18,     2014    ("Opp'n")      [Dkt.

     No. 208] ,   and Plaintiffs filed their Reply on January 12,                      2015

     ("Reply")    [Dkt. No. 212].




     1 Specifically, the Court granted summary judgment to Defendants
     on: "all CFGC claims based on policies or personnel actions
---fi.naI1 zea-pr ior ~Novem15er 5-,-r9-9-3;-ai-1-Aacrtr-c1.-a:.tm-s-rra:s-e-d-on
     policies or personnel actions finalized prior to March 17, 1994;
     and all Gibson claims based on policies or personnel actions
     finalized prior to April 28, 2000." Order dated September 26, 2014
     [Dkt. No. 193]
                                             - 3 -
...




                II.   LEGAL STANDARD 2

                      Under Federal Rule of Civil Procedure 54 (b)                       the Court has

                discretion      to    reconsider      its    own     interlocutory        decisions        as

                justice requires         at     "any time before         the    entry of       a     judgment

               adjudicating       all    the     claims     and    all   the    parties'       rights     and

                liabilities[,]" Fed. R. Civ. P. 54(b).

                      Our     Court       has     consistently           held     that        Rule      54(b)

               reconsideration may be granted "as justice requires.# Cobell v.

               Jewell, 802 F.3d 12, 25 (D.C. Cir. 2015); Judicial Watch v. Dep't

               of Army,     466 F.      Supp.    2d 112,     123    (D.D.C.     2006).    Under the "as

                justice requires" standard, a court may consider whether it "has

               patently misunderstood a party,                has made a decision outside the

               adversarial issues presented to the                   [c]ourt by the parties, has

               made an error not of reasoning, but of apprehension, or where a

               controlling       or     significant       change    in    the    law     or    facts     [has

               occurred] since the submission of the issue to the court." Judicial

               Watch, 466 F. Supp. 2d at 123 (quoting Cobell v. Norton, 224 F.R.D.


               2  Plaintiffs state in the first sentence of their Motion that they
               also seek reconsideration under Fed. R. Civ. P. 59, but fail to
               mention Rule 59 at any other point in their Motion or Reply. In
               light of Plaintiffs' failure to pursue their Rule 59 argument and
               because this Motion is more appropriately viewed as a Rule 54(b)
      - ·--- ---Mori on, -Ene-Court: wi-1-1-1-i-m-1t-1c-s-arra-i-y-s-i-s--t-o-Ru-1-e-s-4-(-b-)-.--:rn-any-- ··
               event, "courts have more flexibility in applying Rule 54(b) than
               in determining whether reconsideration is appropriate under Rule
               59(e) ." Cobell v. Jewell, 802 F.3d 12, 26 (D.C. Cir. 2015)
                (internal quotation marks and citation omitted),
                                                     - 4 -
'·




     266,   272    (D.D.C.     2004)).          "Errors of apprehension may include a

     Court's failure to consider                   'controlling decisions or data that

     might reasonably be expected to alter the conclusion reached by

     the court.'" Singh v. George Washington Univ., 383 F. Supp. 2d 99,

     101 (D.D.C. 2005)         (quoting Shrader v. CSX Transp., Inc., 70 F.3d

     255, 257 (2d Cir.1995)).

            Ultimately,       the     "as       justice requires"             standard amounts      to

     determining         "whether      reconsideration             is     necessary    under       the

     relevant circumstances." Judicial Watch, 466 F. Supp. 2d at 123.

     While the court has a great deal of discretion under 54(b), it is

     limited by the law of the case doctrine and "subject to the caveat

     that, where litigants have once battled for the court's decision,

     they should neither be required, nor without good reason permitted,

     to battle for it again."                   Singh,    383 F.Supp.2d at 101              (internal

     citations omitted).

     III. ANALYSIS

            A.     The Court   Correctly                  Held     Section        2401(a)     To    Be
                   Jurisdictional

            Plaintiffs        argue     that       the     Court        was    incorrect     in    its

     conclusion that 28 U.S.C.              §    2401(a) is jurisdictional and does not

     permit      class    action       tolling.          While     Plaintiffs       make     several

     arguments     as    to   why     the       Court's    Summary Judgment           Opinion was

     incorrect, they do not directly address why this Court is not bound


                                                   - 5 -
      by our Court of Appeals' decision in Mendoza v.                    Perez,   754 F.3d

      1002 (D.C. Cir. 2014).       3


            As discussed in the Summary Judgment Opinion that Plaintiffs

      ask the Court to reconsider,             our Court of Appeals has long held

      that Section 2401(a)        is unlike a "normal statute of limitations"

      because it "'creates a jurisdictional condition attached to the

      government's waiver of sdvereign immunity" that "cannot be waived

      by   the   parties"   and    is    not    subject     to   equitable   extensions.

      Mendoza, 754 F.3d at 1018 (quoting P & V Enters. v. U.S. Army Corps

      of Eng'rs, 516 F.3d 1021, 1026             (D.C. Cir. 2008)       (citing cases)).

      Under this clear and controlling precedent,                  the Court lacks any

      authority to extend the limitations period for claims governed by

      Section 2401(a).      Id.; see also John R. Sand & Gravel Co. v. United

      States, 552 U.S. 130, 134 (2008)           (observing that a "jurisdictional"

      statute    of   limitations       "forbid [s]    a   court   to   consider whether

      certain equitable considerations warrant extending a limitations

      period") .




      3  Plaintiffs cite to Menominee Indian Tribe of Wisconsin v. United
       States, 614 F.3d 523 (D.C. Cir. 2010) ("Menominee I") and Menominee
       Indian Tribe of Wisconsin v. United States, 764 F.3d 51 (D.C. Cir.
       2014) ("Menominee II"), but neither case is applicable, as they
------de-a-1-wtt_h_a_a-1f-f-ere-nt-statut-e-o-f-i-±mttattorrs--p1'.'0Vrs±-on-.-r;n-- ----- ---
       addition, Mendoza was decided only a few months after Menominee
       II; presumably the Court of Appeals was aware of its recent
       decision in Menominee I I when it held that Section 2401 (a) is
       jurisdictional.
                                               - 6 -
       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     &   V Enters., 516 F.3d at 1027            &   n.2; Felter v. Kempthorne,

473 F.3d 1255, 1260 (D.C. Cir. 2007)).                   In addition, after briefing

on the present Motion was complete,                     the Supreme Court held that

the statute of limitations with respect to the Federal Tort Claims

Act in 28 U.S.C.        §    240l(b) was not jurisdictional because Congress

had "provided no clear statement indicating that                         §    240l(b) is the

rare       statute     of    limitations        that     can        deprive      a    court      of

jurisdiction." United States v.                 Kwai Fun Wong,           135 S. Ct.          1625,

1632 (2015).

       However,      because our Court of Appeals has explicitly held

that   §    240l(a) is jurisdictional, and because the Supreme Court's

holding in Kwai             Fun Wong is        limited to       §    2401 (b),       this    Court

remains bound by Circuit precedent as it currently exists.

       B.     The Court Correctly Denied                     Equitable       Tolling        of   the
              Limitations Period

       Plaintrfl:s--argue that -D~~-Circui t preceaent------ariows Secc.fon-- - -

240l(a)      to tolled, even if it is jurisdictional.                         See Pls.' Mot.


                                           -    7 -
at   5-8.    Plaintiffs     rely   exclusively on our          Court     of Appeals'

decision in Hohri v. United States, 782 F.2d 227 (D.C. Cir. 1986),

vacated and remanded on other grounds,               482 U.S.       64    (1987).   In

Hohri,      the Circuit Court held that fraudulent concealment will

toll Section 2401(a) 's six-year statute of limitations. Hohri, 782

F.2d at 247. The Circuit Court's opinion was vacated by the Supreme

Court on unrelated jurisdictional grounds. Hohri, 482 U.S. at 68.

        Since   Hohri   was    vacated,     courts   in    this        circuit   have

continuously held that because Section 240l(a) is jurisdictional,

they lack the power to toll its limitation period. See W. Virginia

Highlands Conservancy v. Johnson, 540 F. Supp. 2d 125, 138 (D.D.C.

2008)    (Section 2401 (a)       has   been construed as        a   jurisdictional

statute of limitations and cannot be overcome by the application

of judicially recognized exceptions such as equitable tolling or

fraudulent      concealment) ;     Conservation Force v.         Salazar,     811 F.

Supp. 2d 18, 27, 28 n.4 (D.D.C. 2011)            (same), vacated and remanded

on other grounds,         Conservation Force,      Inc.   v.    Jewell,     733 F.3d

1200, 1202      (D.C. Cir. 2013); Appalachian Voices v. McCarthy, 989

F. Supp. 2d 30, 42-43 (D.D.C. 2013)             (same); see also John R. Sand

& Gravel Co. v. United States, 552 U.S. 130, 134 (2008)                    (observing

that a "jurisdictional" statute of limitations "forbid[s] a court

to   consider     whether     certain    equitable   considerations          warrant

extending a limitations period").
                                        - 8 -
     Therefore,    the Court correctly denied Plaintiffs'         requests

for equitable tolling.

     C.    Amending the Complaint

     Plaintiffs request the opportunity to amend their Complaint

prior to dismissal of the time-barred chaplains. Pls.' Mot. at 11.

Plaintiffs contend that amendment of the Complaint "to further

specify and clarify their continued injury by successive failures

of selection   ( "FOS")   and bias       in the Reserves"   will allow six

chaplains to continue as plaintiffs. Id.

     Plaintiffs'     argument       is    unavailing.   The   Consolidated

Complaint was filed in October 2012 and is over 200 pages long,

including a 75 page appendix of very detailed information of the

claims for each plaintiff. Any claims Plaintiffs thought they had

should have been included in the Consolidated Complaint.

     Plaintiffs argue that they did not include subsequent FOS by

various   boards   because   they   thought    it unnecessary under D. C.

Circuit law and the law of the case. Pls.' Mot. at 11. Necessary

or not, Plaintiffs made a conscious decision not to include all of

their claims in the Consolidated Complaint or to seek amendment at

an earlier date. Although Plaintiffs may regret their decision to

omit claims by these six plaintiffs now that their claims have

been dismissed,    that is not sufficient reason to permit them to

amend their Complaint to assert the previously omitted claims.
                                     - 9 -
       Plaintiffs also contend that twelve chaplains should have

been permitted to join Adair v. England as additional plaintiffs

in 2002-03, and had they been permitted to do so, they would fall

within Adair's statute of limitations. Pls.' Mot. at 14. Plaintiffs

wish to file a motion "addressing the Court's failure to allow

additional plaintiffs to join in 2002-03," but at no point do they

state what the motion will consist of or what relief they will

seek. See Pls.' Mot at 14-15, 17; Pls.' Reply at 2-6.

      Given Plaintiffs' lack of specificity for why the Court should

further     delay dismissing         the     twelve       chaplains    who   purportedly

sought to join the Adair case in 2002, the Court sees no reason to

withhold dismissal           of   those    plaintiffs       whose     claims are      time-

barred.

IV.   CONCLUSION

      For     the      foregoing          reasons,        Plaintiffs'        Motion     for

Modification        and/or    Clarification          of    the   Court's     Decision    to

Dismiss Certain Plaintiffs under the Statute of Limitations shall

be denied.     An Order shall accompany this Memorandum Opinion.




February 9, 2016                                GladySKeSer
                                                United States District Judge



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