                           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    the    parties'   Cross-

Motions     for   Partial        Summary Judgment.              Upon      consideration of

Defendants'       Motion        [Dkt.   No.    159],    Plaintiffs'         Opposition and

Cross-Motion [Dkt. No. 172], Defendants' Reply and Opposition to

the Cross-Motion           [Dkt.    No.      182],   and Plaintiffs'          Reply to the

Cross-Motion       [Dkt.    No.     189],     and the entire record herein,               and

for   the     reasons    set      forth below,         Defendants'         Motion shall   be

granted and Plaintiffs' Cross-Motion shall be denied.
I .     BACKGROUND

        A.     The Navy Chaplain Corps 1

        The Navy employs a corps of chaplains                                 ("Chaplain Corps" or

"CHC")       whose   mission     is       to provide                 for    the    free     exercise        of

religion by members             of       the Navy,              their dependents,               and other

authorized persons.             In re Eng 1 and,                     3 7 5 F . 3d 116 9 ,      11 71    (D . C .

Cir. 2004)         (citation omitted).                   In accordance with this mission,

Navy     chaplains      provide           religious                education,        counseling,           and

support       to     sailors     and        Marines                 and     advise       commanders         on

religious, moral, and ethical issues.                                Id.

        "A Navy      chaplain's           role       within          the     service      is        'unique, '

involving       simultaneous             service         as         clergy    or     a    'professional

representative[]'        of a particular religious denomination and as

a     commissioned naval        officer."                     Id.     (citing OPNAVINST 1730.1,

Chaplains      Manual    1-2-1-3           (Dep't             of     the    Navy Oct.          3,     1973)).

Chapl,ains      must     have        a     graduate                 level     theology         degree       or


1
  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.                                         Id.      In

addition,       chaplains must be endorsed by a faith-group endorsing

agency as        qualified        to    represent         that    particular           faith        group

within the Chaplain Corps.                   Id. at 1172.

        There     are      over        100     faith       groups         recognized          by      the

Department       of     Defense,       which       the    Navy    has      grouped       into        four

"faith        group      categories"           consisting           of:        Roman         Catholic,

Liturgical       Protestant,           Non-liturgical            Protestant,          and      Special

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

2012)    ("In re Navy Chaplaincy II").

        The     Liturgical           Protestant          category        includes        Protestant

denominations           that     trace        their       origins         to    the      Protestant

Reformation,          practice         infant      baptism,         and        conduct        services

according to a prescribed liturgy or order of worship.                                             In re

England,       375      F.3d    at     1172.         This    group        includes           Lutheran,

Episcopal,       Methodist,           and    Presbyterian         faiths.             Id.;     Consol.

Compl.    ~   6 (b) .     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       Charismatic           faiths.          In     re

England,      375 F.3d at 1172; Consol.                   Compl.     ~    6(c).        The Special

Worship       group       includes           denominations          not        covered        by      the
                                               -   3 -
Protestant               and       Roman        Catholic             categories,              including           Jewish,

Hindu,           Buddhist,          Muslim,           Jehovah, s           Witness,           Christian Science,

Mormon,            and     Unitarian                 faiths.               Chaplaincy           of     Full        Gospel

Churches v.              England,              454    F.3d 290,                295 n.3         (D.C.   Cir.        2006);

Consol. Compl.                 ~   6 n.5.

            B.      The Navy's Personnel System

            Chaplains enter the Navy through a civilian clergy program

or      a    theological                student        program.                     Consol.     Compl.        ~    44 (c) .

Thereafter,              they are              subject         to        the    same personnel           system as

other naval officers and must be selected for promotion in rank

when the needs of the service require.                                               In re England, 375 F.3d

at      1172        (citing             10     U.S.C.          §     611(a))              If      an    officer         is

considered but not selected for a promotion,                                                  he or she is said

to      have        "failed             of     selection."                 Chaplaincy            of    Full        Gospel

Churches, 454 F.3d at 293.                                After failing of selection on two or

more occasions, an officer is subject to involuntary separation,

known as           "sel~ctive                early retirement."                      See 10 U.S.C.        §       632 (a)-

(b) .            However,          the Navy may elect                          to    continue        an officer on

active duty despite                          two or more                 failures        of selection as               its

needs require.                 See 10 U.S.C.               §       632 (c) (2).

            Each of these decisions regarding a naval officer s career                                    1




     promotion,            selective             early             retirement,           and     continuation           on

active           duty              is    made        by    a        "selection           board"        composed         of
                                                           - 4       -
superior officers who act pursuant                         to    statute and regulations

prescribed by the Secretary of Defense.                              See 10    u.s.c.      §§    611,

612. 2             Under    the     current      procedures,         selection      boards        are

composed            of     seven    members :      two     chaplains         and    five        other

officers.             In re Navy Chaplaincy II,                 697 F. 3d at 1173.               Each

board member takes an oath to perform his or her duties "without

prejudice           or     partiality and        having        in view both        the     special

fitness        of        officers    and   the    efficiency of          [the      Navy] "         10

u.s.c.     §       613.

         Selection          board    proceedings         are    secret       and   "may    not     be

disclosed to any person not a member of the board,                                    except as

authorized or required to process the report of the board."                                        10

u.s.c ..       §     614 (a).        In    furtherance          of   this      mandate,         board

discussions,              deliberations,      notes,      and records are           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.      §   613a.




2
  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           contend     that       the        faith     group        categories

recognized             by        the     Navy     are     discriminatory               and      arbitrary.

Consol.       Compl.         ~~        33-38.     In particular,                they claim that           the

categories reflect neither religious demographics nor legitimate

similarities                or     differences          among            the     worship        traditions

represented.

        Second,         they allege              that   in the           past     (but    not    since     at

least 2002), the CHC used religious quotas to apportion chaplain

opportunities among various faith groups.                                      Consol. Compl.        ~~   33-

35.      In particular,                   they allege         that,        from    1976      until    1986,

Defendants implemented a policy of appointing at least two Roman

Catholic          chaplains             to    every     career-grade             chaplain        selection

board (the "2 RC Policy")                        and,   from 1986 until 2002, maintained

a     similar      policy          of        appointing       at    least        one     Roman    Catholic

chaplain          to   every           such     board     (the      "1    RC     Policy") .        Consol.

Compl.       ~~   8, 57(e).              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 -
RC"      Policies        were        designed          to      "stack"       selection            board

proceedings        against      Non-liturgical               candidates      and in favor of

Roman Catholic and Liturgical Protestant chaplains despite their

allegedly declining numbers in the broader population.                                          Consol.

Compl.    ··~~   57 (e)- (g) . 4     Defendants deny that such policies ever

existed.

        Third,     Plaintiffs        challenge           a   number of       facially neutral

personnel practices -                both current and historical                      -    that they

believe have allowed religious bias                            to   infect    selection board

outcomes.          These       include:          (1)    the    small     size        of     selection

boards;     (2) the placement of two chaplains on each board, one of

whom is      either      the       Chief    of     Chaplains        or one      of        his   or her

deputies;        and    (3)    the    use    of        "secret      confidence        voting,"       in

which     board        members       anonymously             indicate     their           degree     of

confidence in a          candidate in 25-degree increments ranging from

zero to one hundred.                  Plaintiffs             claim that      these practices,

taken together,          "enable[]         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. ~~ 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."        In re

Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013)                                    ("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         'faith            group        identifier'      code     was       prominently

displayed       throughout             the    selection         board     process."         Consol.

Compl.    ~   86.         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        prejudice       for    or     against     other

chaplains or faith groups,                         particularly against Non-liturgical

chaplains."         Id.    ~    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        1980s,         in     which      they      allegedly       suffered

discrimination            and    free        exercise        harm   while       serving     in    the

Chaplain Corps.            See Addendum 1 to Consol. Compl.                       ~~   12, 21, 37,

41.   These include occasions on which Plaintiffs claim to have

been:    (1) retaliated against, criticized, and removed from their

posts based on the                content          of   their    religious        teachings;      (2)

treated differently               from Liturgical               chaplains with          respect    to

disciplinary        issues        and        employment       benefits;         (3)    required    to
                                                    - 8 -
officiate          at    Liturgical          services;             and/or        (4)     subjected          to

general         policies        that,        while       not        facially           discriminatory,

disfavored         certain aspects             of    their worship                traditions.              See

generally id. ~~ 1-65. 5

         D.     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         ("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 ,         2 0 07 ,


5
  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. ~~ 187-
203, 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,                    concluding that they

raise     "substantially        similar     constitutional        challenges      to    the

Navy Chaplaincy program."             Mem. Order, dated June 18, 2007, at 4

    [Dkt. No. 11].

        Approximately six months after Adair was filed,                     Defendants

moved to dismiss          a    number of     Plaintiffs'      claims,      arguing,      as

they do in this Motion, that the claims are time-barred.                           [Adair

Dkt. No. 19].        On January 10, 2002, the Court denied that Motion

without prejudice,            finding that although the claims were time-

barred     on     their   face,      Plaintiffs      alleged      facts    to     support

equitable tolling of the limitations period.                      Adair v. England,

183 F. Supp. 2d 31, 54-55 (D.D.C. 2002)                  ("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      v.   England,      209   F.R.D.    5    (D.D.C.     2002)

("Adair II").        Approximately one week after Plaintiffs'                     counsel

filed Gibson as a separate putative class action in the Northern

District     of    Florida,      however,    the    Adair     Plaintiffs        moved    to

6
   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        the     ~utative           class."         See     Adair       Pls.'     Mot.       to

Vacate         [Class Certification]                 Order at         1    [Adair Dkt.          No.    156] .

On      May     30,     2006,         the     Court     granted           that     Motion       and        then

decertified the proposed class in Adair.                                   See Adair Minute Order

of May 30, 2006. 7

            Between     2002     and        2009,     the     parties       conducted         discovery,

interspersed with collateral litigation and three interlocutory

appeals to the D.C. Circuit.                         In 2012, Judge Ricardo Urbina, the

District Judge previously assigned to this case, retired and the

case was reassigned to the undersigned.                                   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 February 22,            2013,    Defendants filed the present Motion

for         Partial     Summary       Judgment        on    their         statute       of    limitations

defense         [Dkt.      No.    159].         On April         5,       2013,    Plaintiffs          filed

their         Opposition         to    Defendants'          Motion         and     Cross-Motion             for

Partial         Summary      Judgment          [Dkt.       No.   172] .           On    May     22,    2013,

7
 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)             "A fact is 'material' if a dispute

over   it .might   affect         the   outcome     of    a   suit          under     governing

law [.]"    Holcomb v.       Powell,     433 F.3d 889,           895        (D.C.    Cir.    2006)

(quoting Anderson       v.    Liberty      Lobby,        Inc.,        477     U.S.    242,       248

(1986)).    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,           Inc.,       v.

Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987).                           "A party asserting

that a fact cannot be or is genuinely disputed must support the

assertion    by   citing     to    particular parts              of    materials            in   the

record,"      including           depositions,           documents,                 affidavits,

admissions or other materials, or by "showing that the materials
                                         - 12 -
cited do         not    establish the           absence       or presence          of    a    genuine

dispute,         or    that    an     adverse       party    cannot         produce     admissible

evidence to support the fact[.]"                       Fed R. Civ. P. 56 (c) (1).                    If

the     movant        meets     its    burden,        the    opposing         party     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     make    credibility determinations                  or weigh          the

evidence."            Reeves v. Sanderson Plumbing Prods.,                       Inc.,       530 U.S.

133, 150 (2000).              However, "the mere existence of a scintilla of

evidence         in     support       of      the    plaintiff's            position         will    be

insufficient" to survive summary judgment.                                 Liberty Lobby, Inc.,

477 U.S. at 252.               As the Supreme Court stated in Celotex Corp.,

"the plain language of Rule 56 (c)                      mandates the entry of summary

judgment,        after      adequate       time      for    discovery and upon motion,

against      a     party      who     fails     to    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,                      having been filed more than six years

after     finalization          of       the    policies        and    personnel            actions     on

which they are based.

        Plaintiffs         agree        that     their       claims        are    governed         by    28

U.S.C.    §    2401(a), which provides that a "civil action commenced

against the United States shall be barred unless the complaint

is     filed     within       six       years       after     the     right      of    action       first

accrues."           28 U.S.C.       §   2401(a).        They argue, however, that their

claims        did    not     accrue          until     they     discovered            the    allegedly

discriminatory          nature          of    the    CHC's     practices          and,      therefore,

that     such       claims    are       timely       under     Section        2401 (a) .           In   the

alternat~ve,           they     contend          that       even      if      their        claims       are

untimely,       the Court should apply equitable tolling doctrines to

permit them to proceed.

        If,    as    Defendants          argue,       Plaintiffs'          claims      accrued when

the    policies        and    personnel             actions     on    which       they       are    based

became        final,    many    of        such       claims     are    barred         by     the    plain

language of Section 2401 (a) .                        In particular,             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                       actions

finalized prior to April 28, 2000.               See Defs.' Mem. at 8-11.

      Consequently,         the Court    shall    first    address    the     issue of

when Plaintiffs'       claims accrued for purposes of triggering the

six-year limitations period in Section 2401(a).                      Then,    it shall

address     Plaintiffs'       argument    that    the     limitations       period     in

Section 2401(a) should be equitably tolled.

      A.     Accrual

             1.   Plaintiffs' Claims Accrued When the Challenged
                  Policies and Personnel Actions Became Final

      In    general,    a    claim    accrues    when     "the   plaintiff      has     a

complete and present          cause of action"          and   "can file       suit and

obtain relief[.]"       Earle v. Dist. of Columbia, 707 F.3d 299, 305

(D.C. Cir. 20l2)       (citation and quotation marks omitted).

      In employment discrimination cases such as this one,                        this

rule yields different             results depending on the           specific legal

theory at issue.        In particular, the Supreme Court has held that

a   claim   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,                            not

the date it is applied to the plaintiff.                   See, e.g., Lorance v.

                                        - 15 -
AT      & T     Technologies,             Inc.,    490         U.S.   900,        905   (1989).        By

contrast,        a    claim challenging a                 facially discriminatory policy

under      Title       VII      accrues      when       the      policy      is    applied       to    the

plaintiff.            See       Ledbetter v.        Goodyear Tire             &    Rubber      Co.,    550

U.S.     618,    634       (2007)        (citing Bazemore v.              Friday,       478 U.S.       385

    (1986)),    superseded by statute on other grounds,                             Lilly Ledbetter

Fair Pay Act of 2009,                    Pub. L. No.       111-2,      123 Stat.        5,     42 U.S.C.

§2000e-5 (e). 8

         In    light       of   these     different        rules,      the    Supreme          Court   has

"stressed the need to identify with care the specific employment

practice that              is at    issue"       before determining the accrual date

for     any particular             claim.         Id.     at    624   (citing Nat' 1            Railroad

Passenger Corp. v. Morgan, 536 U.S. 101, 110-11 (2002)).

         In advocating             for    their    respective         approaches          to    accrual,

the     parties       have      neither      "identif [ied]           with    care      the     specific

employment           practice [s]         that    [are]    at     issue"      in each claim nor

addressed            the     possibility          that         different          rules        apply    to



8
  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           neutral     or

facially discriminatory practices are at issue.                                     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        and    personnel         actions      on    which          they     are     based

became final .            See,     e.g.,       Ledbetter,     550 U.S.          at 637;           Morgan,

53 6 U.S.       at 112-13;         see also Delaware State College v.                              Ricks,

449 U.S.        250,    258    (1980)      (employment discrimination claim under

Title     VII     and    42     U.S.C.     §    1981     accrued        at    time         "the    tenure

decision        was      made      and     communicated            to        [the     plaintiff]") .

Therefore, the Court will apply that accrual rule to Plaintiffs'

claims.

                2.      The "Discovery Rule" Does Not Apply

        Invoking the           "discovery rule"           -   a variant of the general

rule set forth above -                   Plaintiffs argue that their claims did

not     accrue       until     they discovered the             allegedly discriminatory

nature of the practices at issue.                         Pls.' Opp' n at 21-22; Pls.'

Reply at 17.            The discovery rule is most often reserved for tort

cases     which,        unlike      this        case,     involve        injuries            that     are

difficult to discover.                 See, e.g., Gabelli v. S.E.C., 133 S. Ct.

1216,    1221-22         (2013);     Kifafi       v.    Hilton Hotels               Ret.     Plan,    701

F.3d 718, 729 (D.C. Cir. 2012)
                                                - 17 -
        Even assuming,       however,     that the       "discovery rule"             applied

to this case,        it    is discovery "of the injury,                not                  the

other elements of a claim [that]                starts the clock."                 Rotella v.

Wood,    52 8 U.S.   549,     555-56     (2 00 0)    (emphasis added)               There is

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."                         Pl s . '    Opp' n at

16-17.     This argument fails as well.

        Our Court of Appeals has expressly rejected the contention

that    emotional harm "suffered on learning of the government's

alleged malfeasance                    constitute[s]       an independent injury"

postponing accrual          of a     claim.         Sexton v.    United States,             832

F.2d 629,     637    (D.C.    Cir.     1987)         Therefore,       "an employee who

discovers,    or should have discovered,                 the    injury       (the adverse


9
   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."               Almond v.      Unified Sch.       Dist.       No.   501,   665

F. 3d 1174,        1177   (lOth Cir.      2011);    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.      The "Continuing Violation Doctrine" Does Not
                      Apply

     Plaintiffs           also   urge     the   Court     to   apply     the     "continuing

violation doctrine" to the accrual of their claims.                             Pls.' Opp' n

at 17.   This doctrine -             another variant of the general rule -

stems from judicial recognition that certain events cannot                                  "be

made the subject of a lawsuit when                       [they]   first occur[]

typically because it              is only       [their]    cumulative      impact


10
   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          [their]      illegality."            Earle,           707     F.3d       at    306

(citing       Taylor v.         FDIC,     132    F.3d       753,        765     (D.C.      Cir.     1997);

Morgan, 536 U.S. at 115-16)).

        The     Supreme         Court    has     made       clear,        however,          that        this

doctrine,       which is almost exclusively applied to hostile work

environment           claims         under      Title       VII    I     does        not       apply      to

discrimination             claims       based       on     specific           adverse       employment

actions ·because a              "discrete       retaliatory or discriminatory act

'occur[s] on the day that it 'happen[s] '" and is "not actionable

if time barred,             even when         [it    is]    related to acts alleged in

timely filed charges."                   Morgan,         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    VII,       and     they       fail     to         offer        any    persuasive

explanation          as    to   why     the    "continuing violation doctrine"                            is

applicable       to their First and Fifth Amendment                                  claims       alleging

discriminatory employment decisions and specific                                        free      exercise

harms.           Their          central         argument           is         that      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."                         Pls.' Opp'n at 18.                    This is

just     a    variation         of    their     previously             rejected       argument          that



                                                - 20 -
 their claims did not accrue until                        they discovered evidence of

 the Navy's alleged discrimination.                      See supra note 10.

        Furthermore,      the   continuing violation doctrine applies                               to

 "claims that by their nature occur not                            'on any particular day'

but     'over    a   series     of     days       or     perhaps        years [ . ] "    Mayers    v.

Laborers'       Health    &   Safety Fund,              478    F.3d 364,        368      (D.C.   Cir.

2007)      (emphasis     added).           It    does    not       apply to      the cumulative

search for evidence to prove a discrete claim.                                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."        Chin v. Port Auth. of N.Y. & N.J.,                         685 F.3d 135, 157-

58    (2d Cir.. 2012), cert. denied,                   133 S. Ct. 1724            (2013)     (citing

cases) .        Accordingly,         the        "continuing        violation       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                           actions     at    issue became

final,       all     claims      of   Plaintiffs       accruing more        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             "fraudulently          concealed"      their       alleged

wrongdoing.             Second,         they    contend       that   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          counter that        the Court       lacks any authority to

extend        the      limitations        period·       in    Section      2401(a)       because

compliance with that provision is a                          "jurisdictional"          condition

of   the Government's waiver of                   sovereign immunity.                 They also

argue        that,     even      if     the    Court     does     have     such       authority,

Plaintiffs           fail   to    present       evidence      from   which       a    reasonable



                                               - 22 -
juror could conclude that either tolling doctrine applies to the

facts of this case.

        Our        Court       of   Appeals            has     "long          held,"           and        recently

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

limitations"            because        it     "'creates            a    jurisdictional                condition

attached to the government's waiver of sovereign immunity"                                                    that

"cannot          be    waived       by      the       parties"          and       is        not     subject       to

equitable          extensions.              Mendoza      v.     Perez,            754       F. 3d   1002,     1018

(D.C.       Cir.      2014)     (citing P         &    V Enters.             v.    U.S.       Army Corps of

Eng'rs,       516 F.3d 1021,             1026      (D.C.      Cir.       2008)          (citing cases)) . 12

Under       this       clear    and      controlling           precedent,               a    district        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

12
   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'    Motion for Partial

Summary Judgment shall be granted,      and Plaintiffs'    Cross-Motion

shall be denied.




          Jb.
September ~ 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 -
