                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
                               )
IN RE: NAVY CHAPLAINCY         )    Case No. 1:07-mc-269 (GK)
                               )
______________________________)

                           AMENDED MEMORANDUM OPINION

      Plaintiffs,         current    and      former   non-liturgical          Protestant

chaplains in the United States Navy (“Navy”), endorsing agencies

for   non-liturgical        Protestant        chaplains,      and   a    fellowship       of

non-denominational          Christian      evangelical        churches,       bring    this

action against Defendants, Department of the Navy and several of

its officials. Plaintiffs allege that Defendants discriminated

against    them     on    the   basis    of    religion      when   making      personnel

decisions in violation of the First Amendment’s Establishment

Clause     and     the     equal     protection        component        of    the     Fifth

Amendment’s        Due    Process       Clause,    and       that   Defendants        also

violated     the    Establishment        Clause    by       delegating       governmental

authority     over       personnel    decisions        to    chaplains       who    sat   on

chaplain selection boards.

      This matter is before the Court on Plaintiffs’ Motion for a

Preliminary Injunction [Dkt. No. 95] on remand from the Court of

Appeals. 1   Upon consideration of the Motion, Opposition [Dkt. No.


1
  The District Court denied this Motion on January 30, 2012.
Plaintiffs appealed that judgment and the Court of Appeals
reversed and remanded for further proceedings. See infra Section
98], Reply [Dkt. No. 99], and the entire record herein, and for

the reasons set forth below, Plaintiffs’ Motion is denied.

I.    BACKGROUND

      A.     Factual Background 2

      Congress provided for the organization of the Navy Chaplain

Corps,     “whose   members   are    commissioned     Naval     officers     who

possess specialized education, training and experience to meet

the spiritual needs of those who serve in the Navy and their

families.” Adair v. England, 183 F. Supp. 2d 31, 35 (D.D.C.

2002) (Adair I) (internal quotation marks omitted). The Navy

divides the Chaplain Corps into four “faith groups”: Catholic,

liturgical    Protestant,     non-liturgical      Protestant,      and   Special

Worship. In re Navy Chaplaincy, 697 F.3d 1171, 1173 (D.C. Cir.

2012).

      The term “liturgical Protestant” refers to “those Christian

Protestant denominations whose services include a set liturgy or

order of worship.” Adair I, 183 F. Supp. 2d at 36. In contrast,

the   term    “non-liturgical       Protestant”    refers     to    “Christian



I.B. (setting out in detail the procedural background of this
matter).
2
  For a more detailed account of the facts in this case, refer to
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290,
293-96 (D.C. Cir. 2006) and Adair v. England, 183 F. Supp. 2d
31, 34-38 (D.D.C. 2002) (Adair I).

                                     - 2 -
denominations or faith groups that do not have a formal liturgy

or order in their worship service.” Id. Plaintiffs are current

and former non-liturgical Protestants, “represent[ing] Southern

Baptist, Christian Church, Pentecostal, and other non-liturgical

Christian faith groups.” Id.

       In order to become a Navy chaplain, “an individual must

have    an    ‘ecclesiastical         endorsement’         from       a     faith    group

endorsing      agency           certifying       that      the        individual          is

professionally qualified to represent that faith group within

the Chaplain Corps.” In re Navy Chaplaincy, 697 F.3d at 1173.

Chaplaincy     of        Full   Gospel     Churches       and    Associated         Gospel

Churches     are    two    such    endorsing      agencies      and       are   among    the

Plaintiffs in this case. Id.

       The Navy uses the same personnel system for all of its

officers, including chaplains. In re England, 375 F.3d 1169,

1172 (D.C. Cir. 2004). That system “seeks to manage officers’

careers to provide the Navy with the best qualified personnel

through three critical personnel decisions: (1) promotion; (2)

continuation         on     active    duty;       and     (3)     selective          early

retirement.”        Id.     Chaplains,     like     all    Navy       officers,         “are

recommended        for    promotion   by     ‘selection      boards’        convened      to

consider whether particular candidates should be promoted to a



                                         - 3 -
higher rank.” In re Navy Chaplaincy, 697 F.3d at 1173. Chaplain

selection boards are currently composed of seven members: two

chaplains       and     five    other     officers.         Id.     (citing           SECNAVINST

1401.3A, Suppl. ¶ 1.c.(1)(f)).

       Plaintiffs allege that Defendants “discriminated against []

[them]     on    the     basis     of     their      religion,          by     establishing,

promoting and maintaining illegal religious quotas and religious

preferences      in     their    personnel       decision         making.”        In       re   Navy

Chaplaincy,      841     F.     Supp.     2d    336,       341    (D.D.C.         2012).        More

specifically, Plaintiffs allege that “the Navy’s selection board

process    results       in    denominational          favoritism        that         advantages

Catholic    and       liturgical      chaplains        while       disadvantaging               non-

liturgical chaplains” and that “this alleged systematic bias has

left non-liturgical chaplains underrepresented in the Navy.” Id.

340.

       Plaintiffs claim that, under the selection board process,

“[c]haplain       promotion       board        members       ‘vote       the      record’        by

depressing one of five buttons in a ‘sleeve’ which hides the

voter’s hands, ensuring the secrecy of the vote” and that “[t]he

buttons coincide with degrees of confidence the voter has in the

record     considered,          ranging       from     0    to     100       in       25    degree

increments.”          Pls.’    Mot.     for     Prelim.          Inj.    at       4    (internal



                                           - 4 -
quotation marks omitted). Plaintiffs allege that the secrecy of

the vote enables chaplain promotion board members to engage in

the practice of “zeroing out” candidates, a practice in which “a

single [board] member voting zero” ensures that a candidate will

not be selected “because of the small number of board members

who vote[.]” Id. No other branch of the military uses the same

or similar procedures in the management of the careers of its

religious leaders.

       Plaintiffs claim that, under this promotion system, which

has no accountability, their “[s]tatistical analysis [] shows

that     in     every    [Navy     Chaplain      Corps]    personnel      management

category that can be measured by data, the Navy has a preference

for Catholics first, Liturgical Protestants second, with non-

liturgical or Special Worship [faith group clusters] alternating

third and fourth.” Id. at 4-5.

       Plaintiffs now move for a preliminary injunction, asking

the Court to enjoin the Navy from “(1) the use of the Chief of

Chaplains       (the    ‘Chief’)    or   his   Deputy     as   chaplain    selection

board president; (2) the use of secret votes thereon with no

accountability; and (3) placing chaplains on chaplain selection

boards        without    effective       guarantees       [that]   the    power   to

distribute government benefits will be used solely for secular,



                                         - 5 -
neutral     and    non-ideological          purposes.”      Id.     at    1.   Plaintiffs

request that the preliminary injunction remain in force “until

the   Court    can      evaluate      on    their   merits    the    partial      summary

judgment (PSJ) motions pending before this Court.” 3 Id. at 2.

      B.      Procedural Background

      This     dispute        involves      three   cases,     Chaplaincy         of   Full

Gospel Churches v. England, Civ. No. 99-2945, Adair v. England,

Civ. No. 00-566, and Gibson v. Dep’t of Navy, Civ. No. 06-1696,

the   earliest         of   which     was   filed   in    1999,     and    each    with   a

complaint of over 85 pages, containing multiple constitutional

claims. On June 18, 2007, the District Court concluded that the

three      cases       raised       “substantially         similar        constitutional

challenges        to    the    Navy    Chaplaincy        program”    and       accordingly

consolidated the cases under the caption In re Navy Chaplaincy.

Order (June 18, 2007) at 3-4 [Dkt. No. 1].

      On July 22, 2011, Plaintiffs filed the present Motion for a

Preliminary Injunction - which is their sixth such motion for

injunctive relief. 4 On August 26, 2011, Defendants filed their


3
  As discussed below, these motions are no longer pending. The
Court did not reach the merits of the motions, but denied them
without prejudice for case management purposes. See infra
Section I.B.3.
4
  The District Court denied all five of Plaintiffs’ previous
motions for preliminary injunctive or similar emergency relief.

                                            - 6 -
Opposition to Plaintiffs’ Motion, and on September 12, 2011,

Plaintiffs’ filed their Reply in support of their Motion.

       Plaintiffs’       motion    was   denied      by    the   District        Court   on

January 30, 2012. See In re Navy Chaplaincy, 841 F. Supp. 2d

336. Plaintiffs appealed that judgment, and on November 2, 2012,

the    Court     of      Appeals    reversed      and      remanded     for       further

proceedings. 5 See In re Navy Chaplaincy, 697 F.3d 1171.

               1. District Court Proceedings

       In denying Plaintiffs’ motion, the District Court “began by

concluding       that      plaintiffs       lacked        Article     III        standing,

reasoning that their asserted future injury was too speculative

because it rested on the assumption that chaplains sitting on

future       selection    boards    would     ‘necessarily          favor    candidates

affiliated with [their] own denomination,’ an assumption that

the   court     found     implausible     given      that    Naval     officers        ‘are

presumed to undertake their official duties in good faith.’” In

re    Navy    Chaplaincy,     697    F.3d    at   1175      (quoting        In    re   Navy

Chaplaincy, 841 F. Supp. 2d at 345).

        The District Court then concluded that “even if Plaintiffs

had Article III standing, the balance of the four preliminary



5
  The Court of Appeals issued its Mandate on January 18, 2013
[Dkt. No. 154].

                                         - 7 -
injunction factors 6 weighed against granting injunctive relief.”

In    re    Navy   Chaplaincy,       697    F.3d   at   1175.   More      specifically,

“[a]lthough        the    [District]       [C]ourt   presumed       the   existence   of

irreparable harm because plaintiffs had alleged an Establishment

Clause violation, the court found that plaintiffs were unlikely

to succeed on the merits, and that the balance of the equities

and    the    public      interest    weighed      against    granting      preliminary

injunctive relief.” Id. (citations omitted).

               2. Court of Appeals Proceedings

       On    appeal,      the    Court     of   Appeals    reversed       the   District

Court’s conclusion that Plaintiffs lacked Article III standing,

reasoning      that      “[P]laintiffs’         allegation    that    the   challenged

policies will likely result in discrimination is sufficiently

non-speculative to support standing.” Id. at 1177. The Court

then “review[ed] the district court’s ultimate decision to deny

injunctive relief, as well as its weighting of the preliminary

injunction factors[.]” Id. at 1178. The Court concluded that

“the       district      court   correctly       assumed     that    plaintiffs    have

6
  In order to obtain a preliminary injunction, a plaintiff “must
establish [1] that [she] is likely to succeed on the merits, [2]
that [she] is likely to suffer irreparable harm in the absence
of preliminary relief, [3] that the balance of the equities tips
in [her] favor, and [4] that an injunction is in the public
interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008); see infra Section II (setting out in detail the
legal standard for injunctive relief).

                                           - 8 -
demonstrated      irreparable      harm”      and    agreed       with    the    District

Court’s     conclusion    that     the    balance     of    the    equities      and   the

public interest weighed against granting the injunction. Id. at

1179 (stating that “in assessing the balance of the equities and

the    public   interest,     we     must     ‘give     great     deference       to   the

professional      judgment    of     military       authorities’         regarding     the

harm that would result to military interests if an injunction

were granted”) (quoting Winter v. Natural Res. Def. Council,

Inc., 555 U.S. 7, 24 (2008)).

       Noting that the remaining issue was likelihood of success

on    the   merits,    the   Court       of   Appeals      saw    “no    error    in   the

district     court’s     conclusion       that   plaintiffs        are    unlikely       to

succeed on the merits” of their delegation theory. 7 Id. at 1179.

       However,   the    Court     of     Appeals     noted      that    “[w]e    have   a

different view of the district court’s resolution of plaintiffs’

denominational         preference        theory,        i.e.,      that     the        Navy

discriminates against non-liturgical Protestants on the basis of

their religious denomination.” Id. at 1179-80. Plaintiffs claim

that “their statistical analysis provides strong evidence of a

7
  Under this theory, Plaintiffs claim that the Navy impermissibly
delegates governmental authority to religious entities by
permitting   chaplains  to   make  promotion   decisions  without
effective guarantees that the authority will be exercised in a
secular manner.


                                         - 9 -
pattern of discrimination.” Id. at 1180. Defendants challenge

Plaintiffs’     statistical     evidence     and   offer   their      own    expert

analysis,      which    they     claim     demonstrates        that     no     such

discrimination exists. Id.

       The Court of Appeals observed that “the district court made

no factual findings to resolve these competing claims” and that

“[a]ll it had to say about the issue was this: ‘the plaintiffs

have submitted no evidence from which the court could assume

that   the    future    promotion    boards    will    follow    any    putative

pattern of alleged discrimination.’” Id. (quoting In re Navy

Chaplaincy, 841 F. Supp. 2d at 346)). The Court then concluded

that “[t]he district court’s entirely conclusory statement gives

us no insight at all into whether the court perceived the defect

in the Establishment Clause claim to be legal or factual, or, if

factual, whether it thought the weakness lay in the evidence of

past or future discrimination.” Id. Accordingly, the Court of

Appeals    vacated     the   District    Court’s      denial    of    Plaintiffs’

Motion and remanded for further proceedings consistent with its

opinion.

             3. Reassignment of the Case

       On May 31, 2012, Judge Ricardo Urbina, who had handled this

dispute      since   2001,     retired   and   thereafter,       the    Calendar



                                    - 10 -
Committee reassigned it to the undersigned Judge. Because of the

complexity of the procedural and constitutional issues raised,

which    the       parties     have     now    been    litigating   for     well    over   a

decade, the Court held a lengthy Status Conference on July 24,

2012 to fully explore the most efficient procedure for resolving

it. After hearing from the parties at that Status Conference,

this Court dismissed without prejudice nine outstanding motions,

at    least    five     of     which    were    dispositive,      and   issued      a    Case

Management Order (July 25, 2012) 8 [Dkt. No. 124, later amended]

setting numerous deadlines in order to move the case towards

resolution.

               4. Record Considered in Resolving Plaintiffs’ Motion

       On     November       2,   2012,       the   Court   of    Appeals    issued      its

opinion       on    Plaintiffs’         Motion,       reversing   and     remanding      for

further proceedings. On November 19, 2012, this Court ordered

the parties to submit a joint statement identifying those briefs

and     exhibits        they      believed      constituted       the   record      to     be

considered         on   remand     in    resolving       Plaintiffs’      Motion.       Order


8
  Under the Case Management Order, as amended, the parties will
have fully briefed their cross-motions for summary judgment on
statute of limitations grounds by May 20, 2013. After deciding
those motions, the Court will, if necessary, set a briefing
schedule for comprehensive dispositive motions on the merits of
the constitutional issues raised by Plaintiffs.


                                              - 11 -
(Nov.     19,    2012)    [Dkt.       No.     143].    On     December    21,    2012,   the

parties    filed    their     joint          statement       identifying,      among    other

filings,    briefings       and       exhibits     on       four   dispositive    motions,

which     they     agreed     constituted             the    relevant     record.      Joint

Statement (Dec. 12, 2012) [Dkt. No. 152]. The Court considered

that robust record for purposes of resolving Plaintiffs’ Motion.

II.   LEGAL STANDARD FOR INJUNCTIVE RELIEF

      A preliminary injunction is an “extraordinary and drastic

remedy,” Munaf v. Geren, 553 U.S. 674, 689 (2008), and “may only

be awarded upon a clear showing that the plaintiff is entitled

to such relief,” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C.

Cir. 2011) (internal quotation marks omitted) (quoting Winter,

555 U.S. at 22); see Mazurek v. Armstrong, 520 U.S. 968, 972

(1997) (noting that “the movant, by a clear showing, carries the

burden of persuasion”).

      A   party    seeking        a    preliminary          injunction    must   establish

“[1] that [she] is likely to succeed on the merits, [2] that

[she] is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of the equities tips in

[her]     favor,    and     [4]       that    an   injunction        is   in    the    public

interest.” Winter, 555 U.S. at 20.




                                             - 12 -
       In   the   past,   these    four     factors    “have      typically     been

evaluated on a ‘sliding scale[,]’” such that “[i]f the movant

makes an unusually strong showing on one of the factors, then

[she] does not necessarily have to make as strong a showing on

another factor.” Davis v. Pension Benefit Guar. Corp., 571 F.3d

1288, 1291-92 (D.C. Cir. 2009). However, the continued viability

of the sliding scale approach is uncertain “as the Supreme Court

and the D.C. Circuit have strongly suggested, without holding,

that a likelihood of success on the merits is an independent,

free-standing requirement for a preliminary injunction.” Stand

Up for California! v. U.S. Dep’t of the Interior, Nos. 12-309,

12-2071, 2013 WL 324035, at *6 (D.D.C. Jan. 29, 2013); Sherley,

644 F.3d at 393 (“[W]e read Winter at least to suggest if not to

hold   that   a   likelihood      of    success   is   an   independent,      free-

standing requirement for a preliminary injunction . . . [but]

[w]e need not wade into this circuit split today.”) (internal

quotation marks omitted).

       Nor need this Court resolve this unsettled issue because a

preliminary injunction is not appropriate here, even under the

less   demanding     “sliding     scale”     framework.     See    Stand   Up     for

California!, 2013 WL 324035, at *6 (“If the plaintiffs cannot

meet    the   less   demanding         ‘sliding   scale’    standard,      then     a



                                        - 13 -
fortiori,     they     cannot      satisfy     the    more    stringent           standard

alluded to by the Supreme Court and the Court of Appeals.”).

III. ANALYSIS

       Plaintiffs’ claims rest on at least two distinct theories,

i.e., their delegation and denominational preference theories.

Because     the    Court    of    Appeals     affirmed      the    District       Court’s

rejection of Plaintiffs’ delegation theory, this Court need only

consider whether Plaintiffs are entitled to injunctive relief

under their denominational preference theory.

       A.    Likelihood of Success on the Merits

       According     to    Plaintiffs,       the   expert    testimony          they    have

submitted “suggests, if not establishes, [that] the challenged

practices    result       in   clear     denominational       preferences          in   the

award of government benefits, advancing some denominations and

inhibiting others to the detriment of Plaintiffs[.]” Pls.’ Mot.

for Prelim. Inj. at 17. Plaintiffs further contend that “[t]he

challenged    practices        are     not   narrowly    tailored        to     achieve   a

compelling        purpose,”      and    therefore     “fail       all        Establishment

Clause tests and result in unequal treatment for all chaplains.”

Id.

       Defendants respond that liability for discrimination based

upon    religion      cannot      “be    predicated      solely         on     statistical



                                         - 14 -
evidence    of     disparate    impact     in    favor     of   or   against    certain

denominations[,]” Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. at

19, because “proof of intent is a prerequisite to a finding of

unconstitutional discrimination upon the basis of religion[,]”

id.    at   27.    Defendants    further         contend    that     “[t]here    is   no

empirical evidence that would suggest denominational favoritism

or discrimination correlated to the denominational affiliation

of chaplain board members.” Id. at 19-20. In support of their

argument, Defendants put forward evidence from their own expert

witness,     “[who]      analyzed     Plaintiffs’          claims     and   found     no

disparate impact” but did find “serious flaws in [Plaintiffs’

expert’s] analyses.” Id.

       The Court of Appeals directed this Court to resolve these

competing claims and to determine whether Plaintiffs are likely

to    succeed     on   the   merits   of    their    denominational         preference

theory. In re Navy Chaplaincy, 697 F.3d at 1180.

             1. Proof of Intent Is a Prerequisite to a Finding of
                Unconstitutional Discrimination on the Basis of
                Religion

       As a threshold legal issue, the parties dispute whether

Plaintiffs        must   show   that       the    discrimination        alleged       was




                                       - 15 -
intentional. 9 Defendants argue that Plaintiffs must prove that

the    Navy    intentionally           adopted    policies     designed      to   maintain

liturgical      Christian        control       over   the    Chaplain       Corps.   Defs.’

Mot. for Summ. J. at 10-11; see Defs.’ Opp’n to Pls.’ Mot. for

Prelim.       Inj.   at    26-31.        Plaintiffs     respond       that    Defendants’

“argument        that          the      plaintiffs      must         show     intentional

discrimination”           is     “inconsistent        with     Establishment         Clause

precedent” and “contrary to the law of the case.” Pls.’ First

Mot. for Summ. J. Reply at 10.

                     a) Plaintiffs Bear the                 Burden    of    Demonstrating
                        Discriminatory Intent

       The     Court      of         Appeals     recognized     that,        under    their

denominational         preference        theory,      Plaintiffs      claim    that       “the

Navy    discriminates           against    non-liturgical        Protestants         on    the

basis of their religious denomination.” In re Navy Chaplaincy,

697 F.3d at 1179-80 (emphasis added); see Adair First Am. Compl.

at 43 (claiming that Defendants “are deliberately motivated by


9
  The parties debate this point in the briefs on Plaintiffs’
instant motion, see Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj.
at 26-31; Pls.’ Mot. for Prelim. Inj. Reply at 20-23, as well as
in several of the parties’ merits briefs, see Defs.’ Mot. for
Summ. J. at 10-11 [Dkt. No. 46]; Pls.’ First Mot. for Summ. J.
Reply at 7-10 [Dkt. No. 50]; Pls.’ Opp’n to Defs.’ Mot. for
Summ. J. at 10-17 [Dkt. No. 56]; Defs.’ Mot. for Summ. J. Reply
at 4-6, 10 [Dkt. No. 68]; Pls.’ Second Mot. for Summ. J. Reply
at 8-9 [Dkt. No. 70].


                                           - 16 -
faith group bias”) (emphasis added). Plaintiffs argue that their

denominational         preference          theory    raises      First      Amendment     and

Fifth Amendment considerations. Pls.’ Mot. for Prelim. Inj. at

17-18; see In re Navy Chaplaincy, 697 F.3d at 1174 (noting that

under their denominational preference theory, Plaintiffs “assert

that     selection       boards        discriminate         against         non-liturgical

Protestants in making promotion decisions in violation of the

Establishment Clause and the Fifth Amendment’s equal protection

component”).

       Where,     as     here,        Plaintiffs          specifically        claim      that

Defendants engaged in “invidious discrimination in contravention

of     the   First     and     Fifth       Amendments,        [the     Supreme       Court’s]

decisions make clear that the plaintiff must plead and prove

that the defendant acted with discriminatory purpose.” Ashcroft

v.    Iqbal,    556    U.S.    662,    676     (2009)      (emphasis        added)    (citing

Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-

41 (1993) (First Amendment); Washington v. Davis, 426 U.S. 229,

240    (1976)    (Fifth       Amendment));          see   also    Personnel      Admin.      of

Mass. V. Feeney, 442 U.S. 256, 272 (1979) (Fourteenth Amendment)

(“[E]ven if a neutral law has disproportionately adverse effect

upon a racial minority, it is unconstitutional under the Equal

Protection      Clause       only     if    that     impact      can   be    traced     to   a



                                            - 17 -
discriminatory        purpose.”);       Brown    v.   Califano,      627      F.2d   1221,

1234 n.78 (D.C. Cir. 1980) (“Supreme Court cases have made clear

that proof of discriminatory intent, not just disproportionate

impact, is necessary to establish an equal protection violation

of constitutional dimensions.”).

     Under Iqbal, “purposeful discrimination requires more than

‘intent as volition or intent as awareness of consequences . . .

[i]t instead involves a decision maker’s undertaking a course of

action    ‘because      of,     not   merely     in   spite    of,     [the    action’s]

adverse effects upon an identifiable group.’” 556 U.S. at 676-77

(emphasis added) (quoting Feeney, 442 U.S. at 279).

     It is true that, in exceptional cases, the disparate impact

of a facially neutral policy may be so severe that the clear

factual       pattern      is   “unexplainable        on    grounds        other     than”

purposeful      discrimination.         Village       of    Arlington       Heights      v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (holding that

plaintiffs’ Fourteenth Amendment claim was not viable because

plaintiffs      failed     to   carry    their    burden      of   proving      that    the

challenged government decision was motivated by discriminatory

intent).

     Such cases, however, are “rare” and “[a]bsent a pattern as

stark    as    that   in    Gomilion     or    Yick   Wo,     impact    alone      is   not



                                         - 18 -
determinative,   and    the    Court    must     look   to    other    evidence.”

Arlington Heights, 429 U.S. at 266 (emphasis added). In Gomilion

v. Lightfoot, 364 U.S. 339 (1960), a local statute altered the

shape of a city from a square to a 28-sided figure, which had

the effect of removing from the city all but four of its 400

African American voters, and not a single white voter. In Yick

Wo v. Hopkins, 118 U.S. 356 (1886), a city board of supervisors

denied    building     ordinance       waivers     to    over        200   Chinese

applicants,   but    granted    waivers     to   all    but    one    non-Chinese

applicant.

       Accordingly, under Supreme Court precedent, Plaintiffs must

either (1) point to evidence establishing the existence of a

policy or practice that the government adopted “because of, not

merely in spite of” its adverse effect on Plaintiffs, Feeney,

442 U.S. at 279, or (2) demonstrate disparate impact “as stark

as that in Gomilion or Yick Wo,” Arlington Heights, 429 U.S. at

266.

                 b) The Law of the Case Doctrine Does Not Relieve
                    Plaintiffs of Their Burden to Demonstrate
                    Discriminatory Intent

       Plaintiffs argue that Defendants’ position on the intent

issue is contrary to the law of the case because “[Defendants]

first raised this argument in [their] initial 2000 Motion to



                                   - 19 -
Dismiss . . . which the Court rejected.” Pls.’ Mot. for Prelim.

Inj.   Reply    at   20-23.    In   support     of     their    law       of   the      case

argument,      Plaintiffs     heavily    rely     on     the     District       Court’s

statement in Adair v. England, 17 F. Supp. 2d 7 (D.D.C. 2002)

(Adair II) that:

       [t]he defendants are somewhat mistaken when they
       repeatedly state that plaintiffs have the “burden to
       prove the threshold inquiry: [that] the Chaplain Corps
       instituted policies . . . that actually discriminate
       against non-liturgicals” before the court can apply
       strict scrutiny. E.g., Defs.’ Mot. at 60. The
       plaintiffs’ burden is not that onerous. Rather, under
       Supreme Court precedent, the plaintiffs in this case
       bear the initial burden to show that the challenged
       Navy policies “suggest[] ‘a denominational preference
       . . . .’” County of Allegheny, 492 U.S. at 608-09
       (1989). Accordingly, if the plaintiff can demonstrate
       after discovery that some or all of the Navy’s
       policies   and  practices   suggest  a   denominational
       preference, then the court will apply strict scrutiny
       to those policies and practices for which the
       plaintiffs have met this initial burden.

Pls.’ Mot. for Prelim. Inj. Reply at 21 (quoting Adair II, 217

F. Supp. 2d at 14-15); see Pls.’ Opp’n to Defs.’ Mot. for Summ.

J. at 11 (same); Pls.’ Second Mot. for Summ. J. Reply at 9

(same).

       Defendants    respond    that    “nothing       in    the   passage          .    .    .

implies     [that]   the    Court    would      not    require        a    showing           of

intentional discrimination (whatever that showing) in order to

demonstrate     denominational      preference”        and     that   “it      is       clear



                                     - 20 -
that the Court understood Plaintiffs’ claim on this front to be

one of intentional discrimination.” Defs.’ Opp’n to Pls.’ Mot.

for Prelim. Inj. at 28; see Defs.’ Mot. for Summ. J. at 10-11;

Defs.’ Mot. for Summ. J. Reply at 5-6.

      Plaintiffs’     contention        that     “Adair     II     rejected”        the

argument that Plaintiffs must show that Defendants acted with

discriminatory      intent   to    prevail      on    their      First   and      Fifth

Amendment claims, Pls.’ Opp’n to Defs.’ Mot. for Summ. J. at 11-

12,   reflects    a   misreading        of     the   District      Court’s        prior

decisions    in   this   case.     In     Adair      II,   the    District        Court

determined that, although policies that explicitly discriminate

on the basis of religion are subject to strict scrutiny, such

scrutiny     should   not    be    applied      to    policies      that     do    not

explicitly     discriminate       on    the     basis      of    religion      unless

“[P]laintiff[s] can demonstrate after discovery that some or all

of the Navy’s policies and practices suggest a denominational

preference[.]” Adair II, 217 F. Supp. 2d at 14. The District

Court deferred “addressing the parties’ dispute about how much

of this showing can be comprised of statistical evidence until

after discovery[.]” Id. at 15 n.9.

      Defendants are correct that these passages do not imply, no

less clearly state, that Plaintiffs need not show intentional



                                       - 21 -
discrimination          in      order       to      demonstrate           denominational

preference. And in any case, “[i]nterlocutory orders are not

subject     to    law    of     the      case     doctrine     and       may   always   be

reconsidered prior to final judgment.” Langevine v. Dist. Of

Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997); see Spirit of

Sage Council v. Kempthorne, 511 F. Supp. 2d 31, 38 (D.D.C. 2007)

(“[T]he law of the case doctrine leaves discretion for the Court

to reconsider its decisions prior to final judgment.”).

       Moreover,      the     District      Court    had     already      addressed     the

intent issue in Adair I -- a ruling at the early motion to

dismiss stage, delivered only months before Adair II. Therefore

Plaintiffs were on notice of the District Court’s view of “the

importance       of   the     government’s        intent     in    the     Establishment

Clause calculus[.]” 183 F. Supp. 2d at 56 n.24.

       Significantly, the District Court based its Adair I ruling,

that   Plaintiffs       had    stated       a    claim   under     the     Establishment

Clause,     on    the       fact     that       Plaintiffs     alleged         intentional

discrimination.         See    id.    at    56    (“[P]laintiffs          have    properly

asserted that the Navy intentionally hires liturgical protestant

chaplains    dramatically          out     of    proportion       from    their   overall

representation among [Navy] personnel.”) (emphasis added); id at

56 n.24 (“[P]laintiffs allege that the Navy has deliberately



                                           - 22 -
adopted      policies     designed    to   maintain    liturgical      Christian

control      over   the    Chaplain    Corps.”)      (emphasis      added);   id.

(“[Plaintiffs] have clearly alleged an intentional preference.”)

(emphasis added); id. at 57 (“[P]laintiffs clearly offer well-

pled factual allegations that the Navy institutes ‘a deliberate,

systematic, discriminatory’ retention policy ‘whose purpose was

to keep non-liturgical chaplains from continuing on active duty,

thus ensuring they would not be considered for promotion and

minimizing their future influence.”) (emphasis added) (citation

omitted).

     Thus, far from rejecting the argument that Plaintiffs must

prove intent, the law of the case, as clearly articulated in

Adair   I,    recognizes     that    the   central    theory   of    Plaintiffs’

Establishment Clause claim rested on their being subjected to

intentional discrimination.

             2. Plaintiffs   Have   Failed   to   Demonstrate                 that
                Defendants Acted with Discriminatory Intent

     The Court of Appeals pointed out that “whether plaintiffs

are likely to succeed on the merits [of their denominational

preference theory] — turns on whether they have made a strong

showing of a pattern of past discrimination on the basis of

religious denomination and whether that pattern is linked to the




                                      - 23 -
policies they challenge.” In re Navy Chaplaincy, 697 F.3d at

1180 (emphasis in original).

      It    is     clear      from       the       precedent            discussed         above     that

Plaintiffs       bear    the       burden      of    demonstrating              that      Defendants’

alleged     “pattern       of       past       discrimination”                was     motivated         by

discriminatory          intent.         Although          “[p]roof            of     discriminatory

intent must necessarily usually rely on objective factors . . .

[t]he   inquiry      is     practical.”             Feeney,        442       U.S.    at     279   n.24.

“Determining        whether        invidious            discriminatory              purpose       was    a

motivating        factor       demands         a        sensitive            inquiry      into      such

circumstantial          and     direct         evidence            of     intent       as     may       be

available.” Arlington Heights, 429 U.S. at 266.

      The    evidentiary             basis         for       Plaintiffs’             denominational

preference        theory      is    a    series         of       reports       written      by     their

expert,     Dr.    Harald      Leuba.         Plaintiffs           argue       that    Dr.    Leuba’s

statistical         analysis            shows:           “[1]         [that]          the     Chiefs’

denominations        benefitted            from         their      position          in     terms       of

promotions and accessions . . . [2] the Chief’s influence on the

Chaplain     Corps         rank         structure            .    .      .     [3]      the       Navy’s

denominational       favoritism           .    .    .    [4]      the    Navy’s        hierarchy        of

favorite denominations and their respective promotion rates . .

.   [and]   [5]     prejudice           against         Southern        Baptists       compared         to



                                               - 24 -
other denominations with Chiefs.” Pls.’ Mot. for Prelim. Inj.

Reply at 11 (citations omitted).

       Because a preliminary injunction is an “extraordinary and

drastic remedy,” Munaf, 553 U.S. at 689, it is axiomatic that

“the one seeking to invoke such stringent relief is obliged to

establish a clear and compelling legal right thereto based upon

undisputed     facts,”       Belushi     v.     Woodward,      598    F.     Supp.   36,    37

(D.D.C. 1984) (citing Rosemont Enterprises, Inc. v. Random House

Inc.,    366   F.2d    303,        311   (2d.    Cir.    1966)).       “If     the     record

presents a number of disputes regarding the inferences that must

be drawn from the facts in the record, the court cannot conclude

that    plaintiff      has    demonstrated        a   substantial          likelihood       of

success on the merits.” In re Navy Chaplaincy, 841 F. Supp. 2d

at 345 (citing Suburban Assocs. Inc. v. U.S. Dep’t of Housing &

Urban   Development,         No.    05-00856HHK,        2005    WL     3211563,      at    *10

(D.D.C. Nov. 14, 2005); SEC v. Falstaff Brewing Corp., No. 77-

0894, 1977 WL 1032, at *18 (D.D.C. Aug. 1, 1977)).

       Based   on     the     existing        record,     the        Court     finds      that

Plaintiffs      have     provided         no      evidence       demonstrating            that

Defendants      intentionally            discriminated          against        them.       The

statistics proffered by Plaintiffs, without more, are not even

minimally      sufficient           to    demonstrate          the     need      for       the



                                          - 25 -
“extraordinary and drastic remedy” of a preliminary injunction.

Munaf,     553      U.S.    at     689.        Even     if    we    accepted       Plaintiffs’

contention that Dr. Leuba’s statistical analysis “suggests, if

not establishes, [that] the challenged practices result in clear

denominational preferences in the award of government benefits,”

Pls.’ Mot. for Prelim. Inj. at 17, Plaintiffs still would not

have met their burden of demonstrating probable success on the

merits because they made no attempt to show that Defendants’

alleged       pattern       of     past        discrimination          was     motivated      by

discriminatory intent.

       Instead, Plaintiffs repeatedly, and incorrectly, argue that

they     do    not       need      to   show      intentional          discrimination         to

demonstrate         a    likelihood       of    success       on    the   merits     of   their

denominational preference theory, and that it is sufficient for

them     to    put        forward       statistics           that     merely       “suggest    a

denominational preference.” Pls.’ Mot. for Prelim. Inj. Reply at

11-12, 20-23; see Pls.’ Mot. for Prelim. Inj. at 17; Pls.’ Opp’n

to Defs.’ Mot. for Summ. J. at 11; Pls.’ Second Mot. for Summ.

J. Reply at 9. Plaintiffs misunderstand their burden and have

proffered      no       evidence    that       Defendants       adopted      the    challenged

policies      “because      of,     not    merely       in    spite    of”     their   adverse

effect on Plaintiffs. Feeney, 442 U.S. at 279



                                               - 26 -
          Moreover, the disparate impact demonstrated by Plaintiffs’

statistics is not nearly “as stark as that in Gomilion or Yick

Wo,” and therefore, there is no justification for inferring that

the pattern of their statistics is “unexplainable on grounds

other         than”    purposeful         discrimination.            Arlington       Heights,       429

U.S. at 266. For instance, Dr. Leuba found that when a candidate

considered for promotion to Commander happened to be of the same

denomination            as        the    Chief     of     Chaplains,            83.3%     of    those

candidates were selected for promotion. Pls.’ Mot. for Prelim.

Inj.       at    8.    In    contrast,       Dr.       Leuba    also       found     that      when   a

candidate considered for promotion to Commander happened to be

of    a       different      denomination         as    the    Chief       of     Chaplains,       only

73.3% of those candidates were selected for promotion. Id.

          A     mere   10%        difference       between          the     promotion       rate      of

candidates of the same denomination as the Chief of Chaplains

and       candidates         of    a     different      denomination         as     the   Chief       of

Chaplains         is     certainly         not   “stark”       as     defined        in   Arlington

Heights.          Plaintiffs’            demonstration         of    a      10%     difference        in

promotion         rate      is     far    removed      from    the        pattern    in   Gomilion,

where the challenged local statute had the effect of removing

from the city 99% of African American voters and not a single

white voter, and the pattern in Yick Wo, where the building



                                                 - 27 -
ordinance waiver was denied to over 200 Chinese applicants, but

granted to all but one non-Chinese applicant.

       Accordingly,     Plaintiffs’        statistical           evidence    does     not

sufficiently show that Plaintiffs are likely to succeed on the

merits of their denominational preference claim.

       B.    Evaluation of the Preliminary Injunction Factors

       As noted above, the Court of Appeals concluded that “the

district      court     correctly       assumed           that     plaintiffs         have

demonstrated     irreparable       harm”       and   it    saw    no   error     in    the

District Court’s conclusion that the balance of the equities and

the public interest weighed against granting the injunction. In

re Navy Chaplaincy, 697 F.3d at 1179.

       Evaluating     the   four   preliminary        injunction       factors,       this

Court concludes that Plaintiffs are not entitled to injunctive

relief.     Significantly,     Plaintiffs        have      not    demonstrated        that

they are likely to succeed on the merits of their denominational

preference theory because they have not provided any evidence

that    Defendants      intentionally           discriminated          against      them.

Moreover, as the District Court previously observed, “[a]lthough

plaintiffs’ claims might demonstrate an irreparable injury if

ultimately     vindicated      .    .      .    plaintiffs         have     failed      to

demonstrate that an injunction would not substantially injure



                                     - 28 -
third parties” and “[they] have failed to show that the public

interest     would   be   furthered    by    the   court’s   intrusion      into

military personnel decisions.” In re Navy Chaplaincy, 841 F.

Supp. 2d at 349 (citing Goldman v. Weinberger, 475 U.S. 503,

507-08 (1986); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312

(1982) (noting that courts must “pay particular regard for the

public   consequences     in   employing     the   extraordinary    remedy    of

injunction”)).       Accordingly,     Plaintiffs    are   not    entitled     to

injunctive relief.

IV.   CONCLUSION

      Upon consideration of the Motion, Opposition, Reply, and

the entire record herein, and for the reasons set forth in this

Memorandum     Opinion,    Plaintiffs’       Motion    for   a     Preliminary

Injunction is denied.




                                             _____/s/___________________
February 28, 2013                           Gladys Kessler
                                            United States District Judge



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                                    - 29 -
