                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

                                            )
                                            )
IN RE: NAVY CHAPLAINCY                      )       Case No. 1:07-mc-269 (GK)
                                            )
_____________________________ )
                                 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 Background2

        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)   0




        The term "liturgical Protestant" refers to "those Christian

Protest~nt       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 rd. 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] curt        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

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 -
"the    district      court    correctly         assumed      that    plaintiffs              have

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

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 -
that   "their statistical analysis provides strong evidence of a

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] 11 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.




                                    - 10 -
                3. Reassignment of the Case

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

dispute       since     2001,      retired        and     thereafter,       the      Calendar

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


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 -
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

(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



                                               - 12 -
[her]        favor,   and     [4]        that       an     injunction    is      in     the    public

interest." Winter, 555 U.S. at 20.

        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



                                                 - 13 -
California!,     2013 WL 324035,              at *6       ("If the plaintiffs cannot

meet    the    less    demanding         'sliding         scale'     standard,      then     a

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    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.



                                             - 14 -
       Defendants respond that liability for discrimination based

upon    religion            cannot   "be     predicated          solely   on     statistical

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.

        Where,        as here,          "the claim is          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     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.").




                                                     - 17 -
         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

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



                                                - 18 -
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

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:



                                             - 19 -
         [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

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.




                                              - 20 -
       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

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



                                                   - 21 -
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)

(n[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 nthe

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      (n[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    ( n [P] laintiffs            allege       that    the     Navy has        deliberately

adopted       policies          designed          to     maintain        liturgical          Christian

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

(n[Plaintiffs] have clearly alleged an intentional preference.")

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



                                                   - 22 -
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

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

                                                      - 23 -
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

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



                                               - 24 -
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

"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,"



                                            - 25 -
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

        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



                                                - 26 -
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

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.



                                                  - 27 -
        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

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



                                           - 28 -
( 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.




February 28, 2013                         Gladys Ke ler
                                          United States District Judge



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                                  - 29 -
