                           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 nonliturgical Protestant

chaplains in the United States Navy,                              their endorsing agencies,

and     a    fellowship        of     non-denominational                Christian          evangelical

churches       ("PlaintiffS'") ,           bring this consolidated action against

the     Department        of        the     Navy         and     several      of     its     officials

("Defendants") .          Plaintiffs allege that Defendants discriminated

against       non-liturgical              Protestant            chaplains      on    the     basis     of

religion,       maintained a              culture of denominational                   favoritism in

the Navy,       and infringed on their free exercise and free speech

rights.

        This matter is before the Court on Plaintiffs'                                     Motion for

Class Certification             [Dkt.       No.        147] .     Upon consideration of the

Motion,      Opposition        [Dkt.        No.        156] ,   Reply      [Dkt.    No.    160] ,    Sur-

Reply       [Dkt.   No.   170],           Sur-Sur-Reply            [Dkt.     No.     178],    and     the

entire      record    herein,             and     for     the     reasons      set    forth     below,

Plaintiffs' Motion shall be denied.
                         1
I .      BACKGROUND

         A.      The Navy Chaplain Corps

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

    "CHC")    to meet the religious needs of its members.                                  Chaplains

provide religious education,                      counseling,          and support to sailors

and      Marines       and     advise      commanders         on       religious,       moral,     and

ethical issues.               In re England,            3 75 F. 3d 1169,         1171     (D.C.   Cir.

2004)        (citations omitted).             The role of a chaplain "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.

    (citations omitted)              To serve these dual roles,                   chaplains must

have a        graduate level theology degree or equivalent,                                meet    the

physical         and         educational          requirements           applicable         to     all

commissioned officers, and be endorsed by an endorsing agency as

qualified to represent a particular faith group.                                    Id.    at 1171-

72.

         There     are        over    100     faith         groups           recognized      by    the

Department        of     Defense,         which       the   Navy       has    grouped     into    four

"faith group categories" for purposes of organizing the Chaplain

Corps:        Roman     Catholic,          Liturgical        Protestant,           Non-liturgical


1
  The Court assumes familiarity with the extensive record of the
case, which includes more than twenty written decisions by this
Court and the Court of Appeals.
                                                  -   2 -
Protestant,            and     Special        Worship.           In    re        Navy Chaplaincy,                 697

F.3d 1171,         1173        (D.C.      Cir.      2012)       ("In re Navy Chaplaincy I").

The     Liturgical             Protestant            category          consists                of      Protestant

denominations                that    trace          their        origins             to        the     Protestant

Reformation,            practice          infant     baptism,          and follow a                    prescribed

liturgy;          it     includes            Lutheran,            Episcopal,                Methodist,            and

Presbyterian            faiths.              In      re     England,             375        F.3d        at     1172;

Consolidated Complaint ("Consol. Compl.")                                    ~       6(b)      [Dkt. No. 134].

The Non-liturgical Protestant category is composed of Protestant

denominations            that baptize at                  the    "age of reason"                      and do not

follow       a    formal        liturgy;            it     includes          Baptist,                Evangelical,

Pentecostal,            Bible        Church,         and        Charismatic               faiths.            In    re

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

Worship      category encompasses                    all        denominations                  not    covered by

the     other      categories;               it     includes          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.

        In order to maintain the requisite number of chaplains for

all     ranks          (what        the      Navy        refers        to        as         "authorized           end

strength"),            the    Chaplain            Corps     creates          an       annual          "accessions

plan"     setting        forth         the    number        of     officers               it    can     bring      on

                                                     - 3 -
active duty that fiscal year.                             Declaration of Captain Gene P.

Theriot,     CHC,      USN       ("Theriot Decl . " )            ~   2    [Dkt .    No.        2 9- 6] ;     see

also SECNAVINST 1120.4A(5).                     The term "accession" refers to the

process     of   bringing           a   qualified             individual      into       the         Chaplain

Corps as a commissioned officer.                              Theriot Decl.         ~     2.         Chaplain

Corps      accessions            are      drawn          primarily         from         the          civilian

population,         but      also       from        the       reserve      community,                Chaplain

Candidate Program,               and inter-service transfers.                           Id.;         see also

Consol. Compl.         ~    44(c).

        Chaplain         applications               are        reviewed        by        a       "Chaplain

Appointment Recall               and Eligibility Advisory Group"                              or what         is

commonly referred to as a "CARE" board.                               Theriot Decl.              ~    3.     The

CARE board reviews chaplain applications and recommends certain

applicants       to        the      Chief      of        Chaplains,         "giving            particular

consideration              to:      the        existence             of     an       ecclesiastical

endorsement,           academic             performance,                 graduate             theological

education,         professional              ministry            experience,                 professional

reputation       and       deportment,          interview            results       and         letters        of

personal      or       professional             recommendation."                         Id.               After

considering        the       CARE       board's          recommendations,            the         Chief        of

Chaplains forwards his or her recommendations for accession to

the Commander of             the Navy Recruiting Command or the Chief of

Naval Personnel for final approval/disapproval.                                    Id.

                                                -    4    -
      After        accession,          chaplains                are        subject                to     the        same

personnel       system         as     other         naval         officers                  and,       like     other

officers,       are        required       to        be    promoted                 in       rank       at     regular

intervals.         In re England, 375 F.3d at 1172                                   (citing 10 U.S.C.                 §

611 (a)) .        If   a     chaplain          is    considered                but          not    selected          for

promotion to the next higher rank,                               he or she is said to have

"failed of selection."                 Chaplaincy of Full Gospel Churches,                                           454

F.3d at      293.          Two or more              failures          of       selection subject                     the

chaplain      to       the     risk       of        involuntary             separation,                     known     as

"selective early retirement."                         See 10 U.S.C.                     §    632 (a)- (b).           The

Navy may,     however,         elect to continue a chaplain on active duty

despite two or more failures of selection if,                                               in its judgment,

the needs of the Navy so require.                              See id.         §    632(c) (2).

      Each    of       these       decisions         regarding             a       chaplain's                career

promotion,         selective         early          retirement,                and           continuation             on

active duty - is made by a selection board composed of officers

superior     in     rank      to    the    person under                    consideration. 2                     In    re

England,     375       F.3d    at     1172.              The    selection                   board      process        is

governed by statute and regulations prescribed by the Secretary

of   Defense.          See     10   U.S.C.          §§     611,       612.              Under          the    current

2
  Selection board rules and processes differ according to the
rank and type of personnel decision under consideration.     See
generally 10 U.S.C. §§ 611, 612. Unless otherwise stated, the
Court uses 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 -
regulations,       chaplain       selection          boards      are    composed          of    seven

members,     two of whom are chaplains "nominated without regard to

religious affiliation."                 In re Navy Chaplaincy,                  738 F.3d 425,

427     (D.C.    Cir.    2013)        ("In     re    Navy    Chaplaincy         I I I")        (citing

SECNAVINST 1401.3A, Encl.               (1),    ~    l.c. (1) (f))        "Either the Chief

of     Chaplains    or one       of    his     two     deputies        serves    as       selection

board president."         Id.

        B.      Plaintiffs' Claims

        Plaintiffs       are      65     current           and   former         Non-liturgical

Protestant chaplains who have collectively served in more than

fifty different naval command stations worldwide during the past

four decades, 3 their endorsing agencies, and a fellowship of non-

denominational Christian evangelical churches.                             They allege that

"the Navy has violated their constitutional and statutory rights

by establishing a pervasive culture of hostility,                               animosity and

prejudice towards themselves and their class" manifested by:                                       (1)

"a     pattern      of    religious            preferences           favoring         Liturgical

Christian       chaplains      over      Non-liturgical           Christian         chaplains";

( 2)     "procedures       that        allow         and     encourage          denominational

preferences in the award and denial of government benefits"; and

3
  Among other locations, Plaintiffs served in Florida, Italy,
Japan,   Guam,  South   Carolina,   North  Carolina,   Wisconsin,
Virginia, California, Iraq, Lebanon, Georgia, Texas, Maryland,
Washington, the District of Columbia, Texas, New York, Saudi
Arabia,  the Aleutian Islands, and Somalia.        See generally
Consol. Compl., Addendum A [Dkt. No. 134].
                                               - 6 -
    ( 3)   "hostility          toward       Non-liturgical              religious         speech      and

worship practices."                 Mot. at 5.

           They     contend         that     a    statistical            examination        by      their

expert,       Dr.    Harald R.         Leuba,          Ph.D.,    demonstrates that           "[e]very

dimension of personnel management which can be illuminated with

data       shows    that       Non-liturgical            chaplains        are    disadvantaged by

the CHC' [s]         policies and practices of religious preference [.]"

Consol. Compl.            ~   42.

           Plaintiffs'          Consolidated              Complaint             and      accompanying

"Addendum"          collectively           exceed        200     pages    and     contain        sixteen

separate counts,               many of which are not conceptually or legally

distinct.           For purposes            of     this       Motion,     it     is    sufficient      to

divide        their       claims       into       three         overarching           categories,      as

follows. 4

           First,   they attack a number of facially neutral personnel

practices, both current and historical, which they believe have

allowed religious bias                     to infect          selection board outcomes and

led to discriminatory personnel decisions.                                     Specifically,        they

challenge:          (1)       the   small        size     of    selection        boards;      (2)     the

placement of two chaplains on each board, one of whom is either


4
   The Court limits its discussion                               to the     factual and legal
contentions at issue in this Motion                              and, in    so doing, analyzes
Plaintiffs' claims according to the                              type of    alleged violation,
rather than the particular numerical                              scheme   in the Consolidated
Complaint.
                                                   -    7 -
the Chief of Chaplains or one of his or her deputies;                                     and    ( 3)

the    use    of    "secret voting"                procedures      in which board members

anonymously indicate their degree of confidence in a candidate,

a process Plaintiffs contend "enables each board's chaplains to

ensure that         a     particular candidate will not be promoted,                            thus

increasing         the        odds    for      their     preferred     (and    discriminatory)

results."          In re Navy Chaplaincy III,                    738 F.3d at 428; see also

Consol. Compl.            ~   95(c).

       Plaintiffs also take issue with the fact that until 2002,

"each selection candidate's three-digit                           'faith group identifier'

code                was prominently displayed throughout                            the selection

board process[,]" which they claim had no purpose other than "to

identify a candidate's faith group to the board" for purposes of

permitting          the        chaplain         board      members     "to    exercise      their

individual or faith group prejudice .                                 , particularly against

Non-liturgical chaplains."                      Consol. Compl.        ~~   86-87.

       Second,       Plaintiffs assert that,                  until 2001,       the Navy used

religious          quotas            or        "goals"     for       apportioning        chaplain

opportunities among the faith group categories.                                 Consol.    Compl.

~~   33-35.        In particular, they claim that between 1986 and 2001,

the Navy had a so-called "Thirds Policy" under which it reserved

thirty-five          percent              of    chaplain     accessions        to      Liturgical

Protestants,            thirty-five              percent     to      "Non-liturgical        faith


                                                   - 8 -
groups,"         and      thirty        percent           to    "Others,"      including             Catholics.

Consol.      Compl.         ~~    33,    35,        43.        They also claim that                   from 1977

until     2002,        Defendants maintained a                         policy of         reserving a          set

number      of    selection             board       seats        for    Roman       Catholic          chaplains

(the so-called              "2    RC"    and        "1     RC"    policies),            allegedly for         the

purpose      of     "stacking"           selection board proceedings                            in    favor    of

Roman Catholic and Liturgical Protestant chaplains despite their

declining         numbers         in     the    broader            population.             Consol .        Compl .

~~    57 (e)- (g)

        Third,      in      the    "Addendum"              to    their Consolidated Complaint,

the     individual          chaplain           Plaintiffs           advance         a    laundry       list    of

fact-specific               claims        asserting               equal       protection             and     free

exercise violations                 they purportedly suffered while                               serving as

chaplains in the Navy.                     These consist of highly individualized

allegations that they were,                          at different points in time and in

different        command          centers:           (1)       retaliated      against,          criticized,

transferred,           or    removed       from            their    posts      by       superior officers

based      on     their          faith         or        the     content       of        their        religious

teachings;          (2)      treated       differently                 from    Liturgical             chaplains

with     respect          to      disciplinary                  issues,       promotion,             retention,

selective         early          retirement,               recall      to     active          duty,     fitness

reports,        and/or       employment             benefits;           (3)   made       to    officiate       at

Liturgical services; and                   (4)       subjected to general policies that,


                                                         - 9 -
    while not facially discriminatory, disfavored certain aspects of

    their worship           traditions.        See,    e.g. ,          Consol.    Compl.     ~~    17 8-

    184 (kk)    &   Addendum A. 5          They claim that each of the practices,

policies,            and    procedures      they      challenge          enabled      or    permitted

other chaplains to discriminate against them,                                   thereby violating

their          rights      under     the    First     and     Fifth        Amendments        and      the

Religious           Freedom     and    Restoration           Act       ( "RFRA") ,    42    U.S. C.     §

2000bb,         et seq.         See generally Consol.                  Compl.    ~~   29-131,      141-

164.

          Plaintiffs seek sweeping injunctive and declaratory relief

that       would        place       this    Court      in     an        essentially         perpetual

oversight role with respect to the Navy's personnel practices.

Such       relief          includes    both     individually-tailored                 remedies         to

repair purported damage to each and every chaplain's career,                                           as

well       as       what     Plaintiffs       refer     to        as    "fundamental         reform,"

requiring the Navy to adjust its hiring and retention policies

to      match       religious       representation           in    the     greater     population.

Mot.      at     38.        Their     requested       remedies          include,      but    are      not

limited to:


5
 For example, Plaintiffs allege that some "senior chaplains have
insisted on rotating chaplains through .    . services instead of
assigning a    chaplain as   a    'pastor' for   a  congregation,
reflecting the liturgical viewpoint that the liturgy satisfies
the congregation's worship need, rather than the Non-liturgical
view that good biblical preaching, music, and praise and worship
comprise the worship experience[.]" Consol. Compl. ~ 150(b).
                              - 10 -
    •   A judicial declaration voiding "all personnel actions" made
        regarding Navy chaplains of any denomination since 1977.
        Consol. Compl. at 119.

    •   Reinstatement of separated Non-liturgical chaplains to
        active duty "until such time as they have been reviewed by
        legally constituted boards." Id. at 111.

    •   An order requiring the Navy to "correct the records and
        remove the prejudice from the affected Non-liturgical
        chaplain's official career file,     take other necessary
        actions to make plaintiffs whole, and take corrective
        action to preclude further incidents of prejudice." Id. at
        118.

    •   "Special compensation" for the named Plaintiffs "for the
        expense, stress and hostility they have endured to bring
        this action[.]" Id. at 120.

    •   An order invalidating all of the challenged personnel
        policies and requiring the Navy to "[d]evelop new policies,
        guidelines, and regulations that [,]" among other things,
        "officially record the religious preference of all Navy
        personnel";   "[e]nsure   that      [Non-liturgical] services
        receive priority or become the main Christian service when
        Non-liturgicals constitute a majority"; and adjust the
        CHC's rank structure to reflect religious preference.     Id.
        at 117-19 (emphasis in original) . 6

    •   A court-ordered "system of checks and balances" monitoring
        remedial efforts to ensure that consideration of religious

6
   As other courts have noted, there is an inconsistency between
Plaintiffs' claim that the Navy is prohibited from considering
religion in its personnel decisions and their simultaneous
assertion that the Navy is constitutionally required to consider
religion in its personnel decisions by developing a system of
proportional representation.   See Sturm v. U.S. Navy, No. 99-CV-
2272, slip op. at 7 (S.D. Cal. June 18, 2002) ("Sturm Mem. Op.
of June 18, 2002") (noting inconsistency between argument that
"the First Amendment     does not permit      the Government   to
discriminate between denominations"     and simultaneous demand
"that Non-liturgical Protestants be picked over Liturgical
Protestants and Roman Catholics because they purportedly satisfy
a higher percentage of service members' religious needs").
                              - 11 -
        considerations is "effectively eliminated" from promotions
        and career processes,     and that  future "complaints of
        religious   discrimination are promptly investigated and
        addressed."   Id. at 117-18.

        C.        Defendants' Response to Plaintiffs' Claims

        Defendants deny Plaintiffs' allegations in their entirety.

        First,       they deny that                   any of       the       alleged      "quota"     systems

(the     so-called               "Thirds,"          "1     RC"     and        "2    RC"   Policies)        ever

existed.            They         point    out        that     the       Navy's       rules     specifically

require promotion board members to "be nominated without regard

to     religious        affiliation"                and prohibit             "[e] xclusion      from board

membership           by      reason           of      gender,           race,       ethnic     origin,          or

religious          affiliation [.]"                   Defs.'       Mot.       for    P.   Summ.     J.     at    5

[Dkt.       No.    46-1]         (citations omitted)                   (citing SECNAVINST 1401.3 ~

4(a)    &    Encl.      1    ~    1(c) (1) (e)).            They point out further that the

Chaplain          Corps'         personnel          policies           and    Guiding     Principles,           on

which        chaplains            receive          yearly        training,          expressly        prohibit

religious discrimination of any type and require that personnel

decisions          be       based        on    merit        alone.              Opp'n     at   24        (citing

SECNAVINST           5350.16A                       7) .          In         accordance        with       these

requirements,             Defendants            maintain          that        "[i] ndividual        accession

decisions         are       made    on        the     basis       of    qualifications          alone"      and

that the Navy has consistently endeavored to "access[]                                              the best-

qualified candidates irrespective of faith group."                                             Defs.'      Mot.

for P. Summ. J. at 23, 24                       (citations omitted).
                                                         - 12 -
          Second,         Defendants claim that,               consistent with its policy

of nondiscrimination,                      the Navy has enacted numerous safeguards

    to prevent         discrimination from infecting selection proceedings

and to "protect the rights of all to worship or not worship as

they choose."                  Opp'n at 24        (citing SECNAVINST 5351.1, encl. 4).

These      safeguards             include       requiring     selection board members                to

    "take an oath to perform                     [their]     duties       without        prejudice or

partiality";              instructing them to "ensure that officers are not

disadvantaged because of                               religion"; and imposing on them a

duty to report any belief that board results have been tainted

by improper influence or bias.                             Opp' n at 2 4       &   Ex.    6 (Jan. 2 3 ,

2013,      Decl.          of     Commander       Jeffrey      J.       Klinger,     USN)     ("Klinger

Decl.") •• 26, 27, 29, 59 [Dkt. No. 156-6]; see also Defs'. Mot.

for P. Summ. J. at 4 (citing 10 U.S.C.                             §   613).

          Third,        Defendants            challenge     the        statistical       findings    of

Plaintiffs'             expert,         Dr.   Leuba,    in their entirety.                 See,   e.g.,

Opp ' n    at        2 0- 23 ,    26 . 7      They   assert       that    from     1988    until    the

present,        "Non-liturgicals have steadily grown to constitute the

largest         of     the       four      Faith Group Categories              recognized by the


7
  Defendants retained their own expert, Dr. Bernard R. Siskin,
Ph.D., whose analysis Plaintiffs have moved to strike under Fed.
R. Evid. 702 and 403.   See Opp'n, Ex. 2 (Statistical Analysis of
Promotions and Early Retirement Selections in the United States
Navy Chaplain Corps, Supplemental Report)      [Dkt. No. 156-2];
Pls.' Renewed Mot. to Strike [Dkt. No. 169].   The Court does not
rely on Dr. Siskin's report to resolve the pending Motion.
                              - 13 -
Navy for Chaplain Corps personnel management purposes,                                     recently

becoming       the    outright       majority of           all     active     duty Chaplains,

both overall and at every rank save Rear Admiral."                                  Opp'n at 4.

        They     claim        that    "since        FY     2002,       Non-liturgicals           have

accessed       in      greater        numbers           than     any    other        faith      group

category [,]"         and     now    constitute          59. 9 percent        of    all    Chaplain

Corps    accessions,           "compared to         Liturgical          Protestants        at    2 6. 7

percent,       Roman     Catholics       at    7. 2 percent,           and    Special        Worship

candidates       at     6.3     percent       of    all        accessions,         respectively."

Id.;    see also Decl.          of Veronica Berto dated May 20,                        2011     ("May

20,    2011, Berto Decl."), Exhibit C [Dkt. No.                          156-8].          Moreover,

they claim that this representation of Non-liturgical chaplains

exceeds "by a significant margin" the overall percentage of Navy

personnel       that        self-identify          as    belonging       to     a    faith      group

category within the Non-liturgical                         category."          Opp' n · at      2 6- 2 7

(citing May 20, 2011, Berto Decl., Exs. A & B) . 8

        Fourth and finally,            and based on the foregoing,                     Defendants

argue    that,       "[a] t    its    heart,       this        consolidated         litigation       is

really a collection of individual employment disputes" . in which


8
  Specifically, Defendants' analysis found that "Navy personnel
who self-identified as belonging to a faith group that would
fall within the Non-liturgical Faith Group Category constituted
only 13 percent of the Navy as of March 31, 2011[,]" whereas
"Non-liturgicals constituted 53 percent of the Chaplain Corps as
of FY 2010."   Opp'n at 26-27 (citing May 20, 2011, Berto Decl.,
Exs. A & B).
                                              - 14 -
the proposed class members have only "two principal                                                     things in

common:             (1) they belong to Christian faith groups categorized by

the Navy as Non-liturgical                                 for personnel            management          purposes;

and           (2)     at    some       point,           each       sustained     one       or   more      adverse

personnel decisions, such as failure to promote to the next rank

or selection for early retirement."                                        Defs.'        P. Mot.    to Dismiss

at        1         [Dkt.        No.    2 9]   0          "Beyond          that,"        Defendants           argue,

Plaintiffs'                 "individual                  cases       diverge        in      numerous           ways,

depending on when and where they served, what their duties were,

to whom they                     reported and by whom they were                             supervised,          and

multiple other factors."                            Id. at 1-2.

          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 2 6,                                       2 0 0 0.      [Adair Dkt.          No.

21]   0        Gibson was filed in the Northern District of Florida on

April           28,        2006,       and         was     subsequently           transferred            to     this

District pursuant to 28 U.S.C.                                 §   1404.     See Mem. Order of August

17, 2006, at 1 [Gibson Dkt. No. 1].                                    On June 18, 2007, the Court

                                                           - 15 -
consolidated          all    three      actions,           concluding          that        they      raise

"substantially            similar      constitutional              challenges          to     the     Navy

Chaplaincy program."                 Mem.     Order of June 18,                2007,        at 4      [Dkt.

No. 11].

        On March 26,         2002,     the Adair Plaintiffs filed their first

Motion        for    Class    Certification,              which       the      Court       granted       on

August 19, 2002            [Dkt. No. 69].           See Adair v. England, 209 F.R.D.

5     (D.D.C.    2002).       Four years later,                 the Adair Plaintiffs moved

to vacate the 2002 Class Certification Order,                                  claiming that, as

a      result       of      recent      "job            changes"         and        other     personal

circumstances,            "they      [we]re        no     longer         willing       or     able       to

represent or to assume the burdens inherent in representing the

class."         Pls.' Mot.      to Vacate the Aug. 19, 2002, Order Granting

Pls.' Mot.          to Certify a Class,                 at 2     [Adair Dkt.         No.     156] .      On

May 30, 2006, the Court granted this Motion.

        The     parties      engaged        in    more         than   five      years       of      active

discovery between 2002                and        2009,     interspersed with collateral

litigation          and   three      interlocutory              appeals        to    our     Court       of

Appeals.         In 2012,     Judge Ricardo Urbina,                   who had been assigned

to this case,            retired and it was reassigned to this Court.                                    At

the    Court's       request,     on    October           3,     2012,      Plaintiffs           filed    a

Consolidated Complaint                [Dkt.       No.    134]     comprised of all of the

remaining claims at issue.

                                                 - 16 -
            On December 4,                2 012,   Plaintiffs        filed the         instant       renewed

Motion        for     Class         Certification            ("Mot.")          [Dkt.    No.     147].      On

January        23,       2013,       Defendants        filed        their      Opposition        ("Opp'n")

    [Dkt.    No.     156] .        On February 25,             2013,      Plaintiffs           filed    their

Reply        ("Reply")            [Dkt.     No.    160].     With permission of the Court,

on March           27,    2013,       Defendants           filed     a   Sur-Reply           ("Sur-Reply")

    [Dkt.    No.   170],          and on April 15,           2013,       Plaintiffs also filed a

Sur-Reply ("Sur-Sur-Reply")                         [Dkt. No. 178].

II.         Subject Matter Jurisdiction Over Plaintiffs' Challenge to
            the "Thirds Policy"

            Before     reaching            the     class    certification             issue,    the     Court

must        address       a       threshold        issue     left     undecided         in     one    of   its

prior decisions:                  whether it has            subject matter             jurisdiction to

consider Plaintiffs' challenge to the alleged "Thirds Policy." 9

            The parties dispute whether the Thirds Policy ever existed,

but     it    is undisputed that                   it has not existed since 2001.                          See

Consol.        Compl.         ~    35(a)-(b);        Pls.'    Mot.       for     P.    Summ.    J.     at 4-5

(policy was              "abandoned"             in 2001)     [Dkt.      No.     55]         Our Court of



9
   The Court has an affirmative duty to ensure that it is acting
within its jurisdictional limits and may raise the issue sua
sponte at any time.      See Fed. R. Civ. P. 12 (h) (3) ("If the
[district] court determines at any time that it lacks subject-
matter jurisdiction, the court must dismiss the action."); Evans
v. Suter, No. 09-5242, 2010 WL 1632902, at *1 (D.C. Cir. Apr. 2,
2 010) ("[A] district court may dismiss        sua sponte
when, as here, it is evident that the court lacks subject-matter
jurisdiction[.]").

                                                     - 17 -
Appeals has therefore recognized that,                              "because the Navy already

eliminated the         Thirds            Policy,"    and there             is    no    evidence     "the

Navy will reinstitute it,                   any injunction or order declaring it

illegal would accomplish nothing - amounting to exactly the type

of   advisory       opinion Article               III     prohibits."                 Larsen v.    U.S.

Navy, 525 F.3d 1, 4 (D.C. Cir. 2008)                           ("Larsen I").

      In    2008,     Defendants            moved        to    dismiss          the    Thirds     Policy

claim,     arguing that,            under Larsen I,                 any prospective challenge

to the Policy is moot.                    See Defs.'          P. Mot.       to Dismiss at 21-22

[Dkt . No. 2 9 -1] .        They also argued that Plaintiffs lack standing

to   challenge       the    Policy          because        "each      Plaintiff          successfully

accessed     into     the       Chaplain          Corps"       and     therefore         cannot     show

"that the Navy's past or present accession policies caused them

any injury in         fact,         a    requirement           of    standing."           In re Navy

Chaplaincy,     850 F. Supp.               2d 86,       109     (D. D.C.    2012)        ("In re Navy

Chaplaincy II")        (citation and quotation marks omitted); see also

Defs.' P. Mot. to Dismiss at 19-22.

      In response,          Plaintiffs did not argue that they suffered a

direct     injury      as       a        result     of        the     alleged          Thirds     Policy

(presumably because it is undisputed that they all successfully

accessed into the Chaplain Corps) , but asserted instead that the

Policy     resulted        in       an     underrepresentation                  of     Non-liturgical

Protestants in the Chaplain Corps that limited their ability to

                                              - 18 -
meet     their     communities'          religious    needs         and    increased     their

workload.         See Pls.' Opp'n to Defs.' P. Mot. to Dismiss at 29-30

[Dkt . No. 3 3] .

       In 2012, the Court addressed these arguments.                           With respect

to standing,        it noted that          Plaintiffs alleged that                 the Thirds

Policy      had    limited       their    ability     to     meet     their    communities'

religious         needs    and     increased       their      workload.            The   Court

concluded that this "pleaded factual content,                             accepted as true,

allow [s]     the court      to draw the           reasonable        inference      that   the

plaintiff [s]       suffered an injury in fact                 to support          standing."

In re Navy Chaplaincy II,                 850 F.     Supp.    2d at 110.           Given the

procedural pOsture of the case, however, the Court did not reach

whether      Plaintiffs      satisfied       the     other     elements       of    standing.

Id. at 109-110 (quoting Sierra Club v. EPA, 292 F.3d 895, 898-99

(D.C. Cir. 2002)).

       With respect to mootness, the Court noted that the Court of

Appeals panel in Larsen I had recently recalled its mandate due

to the discovery of new evidence allegedly suggesting the Navy

had    reinstituted        the    Thirds    Policy.          Consequently,         the   Court

denied      Defendants'      mootness       challenge        "without        prejudice"     to

future consideration "after the court has ruled on the remanded

Larsen matter."           Id. at 110 n.11.




                                           - 19 -
        The   district     court    in    Larsen   I     has   now    ruled     on     the

mootness issue.        It determined that the challenge to the Thirds

Policy remained moot because the newly presented evidence did

not "indicate that the Thirds Policy will likely be reenacted."

Larsen v.      U.S.   Navy,   887    F.    Supp.   2d 247,      258   (D.D.C.        2012)

 ("Larsen II").       In this case, too, there is no evidence the Navy

will reinstate the alleged Thirds Policy. 1 °                  Consequently, as in

Larsen I,      any forward looking or declaratory relief that                         this

Court    might    grant    with    respect    to   the    alleged     Thirds     Policy

would    "accomplish nothing -            amounting    to exactly the          type of

advisory opinion Article III prohibits."                  Larsen I,     525 F.3d at

4.   Accordingly,      Plaintiffs'        claim for declaratory and forward-

looking injunctive relief related to the Thirds Policy is moot.

        In    light   of   this     conclusion,        Plaintiffs      also      cannot

demonstrate      standing     to    challenge      the     Policy.       They         have


10
   The evidence of the Thirds Policy consists largely of a single
memorandum from Captain D. K. Muchow to the Chief of Chaplains
regarding the annual accessions plan for FY 1987 (the "Muchow
Memorandum")   [Dkt. No. 55-22].    The Muchow Memorandum states
that "[f]aith group mix best meets the needs of the naval
service when 35 percent of the Chaplain Corps inventory is
liturgical, 35 percent non-liturgical and 30 percent other
 (Roman Catholic, Jewish, Orthodox)."    Id. at 1.    However, it
makes no reference whatsoever to the existence of any formal
Thirds   Policy and there     is no    indication that Muchow's
assessment of optimal "faith group mix" reflected the views of
the CHC as a whole or pertained to accession goals for any year
other than FY 1987. At his deposition, Muchow characterized the
Memorandum as merely a "snapshot of where we were" in FY 1987.
See Dep. Tr. of Donald K. Muchow at 44:18 [Dkt. No. 47-15].
                              - 20 -
previously argued that they suffered an Article III injury as a

result of the Thirds Policy because it limited their ability to

meet the religious needs of Non-liturgical service members and

increased     their     workload.         Even    assuming,      however,       that

Plaintiffs could prove they were required to work harder than

other chaplains as a result of the Policy (as to which there is

negligible evidence),         and that    such an injury is         sufficiently

concrete and particularized to satisfy Article                  III,   Plaintiffs

would still be required to show that it is "likely,                    as opposed

to merely speculative,         that the injury will be redressed by a

favorable     decision."        Nat'l    Envtl.    Dev.   Ass'n's      Clean     Air

Project v.    EPA,    No.   13-1035,    2014 WL 2219065,      at *3    (D.C. Cir.

May 30, 2014)     (quoting Lujan v. Defenders of Wildlife,                  504 U.S.

555, 560-61 (1992))         (quotation marks and ellipses omitted).

        There is no indication that Plaintiffs'            increased workload

in the past has had any lasting adverse effect.                 As the District

Court for the Southern District of California held in a related

case,    "' [p] ast exposure to illegal          conduct does not      in itself

show a present case or controversy .               . if unaccompanied by any

continuing,     present      adverse     effects. '"      Wilkins      v.     United

States, No. 99-CV-1579-IEG (LSP), slip op. at 23                (S.D. Cal. June

29,   2005)   ("Wilkins Mem.     Op.    of June 29,    2005")    (quoting Renne




                                       - 21 -
v. Geary, 501 U.S. 312, 320-21                         (1991))     (emphasis added)); aff'd,

232 F. App'x 710 (9th Cir. 2007).

        Furthermore, there is nothing in the record to suggest that

the     limited     declaratory            and        injunctive        remedies          available        in

this     Court     could        provide       effective           relief          for     any     injuries

Plaintiffs        sustained          in    the    past      as    a     result      of     the        alleged

Thirds     Policy.           " [W] hile      plaintiffs           may       seek declaratory and

injunctive relief,              they may not seek damages because the United

States has not waived sovereign immunity for monetary relief for

unconstitutional             acts    taken by government                     employees          acting     in

their official capacities."                       Leonard v. U.S. Dep't of Def., No.

13-1571,     2014       WL    1689606,           at    *3   n.2        (D.D.C.      Apr.        30,     2014)

(citing Clark v.             Library of           Cong.,         750    F.2d 89,          102-03        (D.C.

Cir.     1984)).         "The       government          also      has       not    waived       sovereign

immunity     for        monetary          damages        resulting           from       violations         of

RFRA."      Id.    (citing Webman v.                  Fed. Bureau of Prisons,                    441 F.3d

1022,    1026     (D.C.      Cir.     2006)       ("RFRA does not waive the federal

government's sovereign immunity for damages.")).

        Consequently,           if        Plaintiffs        prevailed,              they        would      be

limited to non-monetary relief for any constitutional violations

resulting        from     the       Navy's       prior      use        of    the        alleged        Thirds

Policy.      They have not identified any non-monetary relief that

could remedy the fact                 that they were required to                          "expend more

                                                 - 22 -
effort" than their Liturgical colleagues a decade or more ago. 11

Nor have they identified any other injury related to the alleged

Thirds Policy that the Court could redress through non-monetary

relief. 12

      In     sum,   because   Plaintiffs'    request   for   declaratory   and

forward-looking relief is moot and the Court is unable to issue

any relief for the only injury they claim to have suffered in


11
   Plaintiffs do allege that Non-liturgical chaplains are still
underrepresented as a result of the alleged "Thirds Policy" and
thus suggest that the Court can provide relief for the fact that
they continue to shoulder a heavier workload.    See Pls.' Opp'n
to Defs.' P. Mot. to Dismiss at 33.    But this contention finds
no support in the record. As already noted, as of FY 2010, Non-
liturgical Protestants made up more than 50 percent of the
Chaplain Corps, whereas in 2011, personnel who self-identified
as belonging to a Non-liturgical faith group constituted only 13
percent of the Navy. See May 20, 2011, Berto Decl., Exs. A & B.
12
    Plaintiffs allege that the Thirds Policy "applied" to
recruiting and accessions.    See Consol. Compl. ~~ 35(b), 43; see
also Decl. of Commander Timothy J. Demy, CHC, USN ("Demy Decl.")
-r4 [Dkt. No. 178-4].       To the extent they suggest it also
applied to other personnel decisions, see Consol. Compl. ~ 43,
they have presented no evidence that it did, whereas Defendants
have submitted an affidavit clearly stating that "[t]here [we]re
no express or implied quotas for promotion based on faith"
during the relevant time period.     Affidavit of R.W. Duke at 4,
Wilkins v. Lehman, No. 85-3031 (S.D. Cal. Jan. 16, 1986) ("Duke
Aff. ") [Dkt. No. 172 -3] .  Similarly, a promotion board precept
dated June 23, 1987, states that boards must select officers who
"giving due consideration to the needs of the Navy for officers
with particular skills, considers best qualified for promotion,"
a standard to "be applied uniformly" to all candidates.    FY 1988
Promotion Board Precept at 2 [Dkt. No. 160-8].     There is simply
no evidence that the alleged Thirds Policy, or any other
religious quotas or goals, impacted promotion, retention, or
selective early retirement decisions.

                                    - 23 -
the past,       Plaintiffs have              not      established the              existence of            a

"live controversy" pertaining to the Thirds Policy.                                         Therefore,

the Court       is without           jurisdiction to consider it.                               See Sturm

Mem. Op. of June 18, 2002, at 6 ("While Plaintiff may take issue

with Defendant's                former accession practices,                     ' [w] e    are not        in

the     business      of    pronouncing             that     past     actions       which        have     no

demonstrable continuing effect were right or wrong.'")                                           (quoting

Spencer v. Kemna, 523 U.S. 1, 18 (1998)), aff'd, 76 F. App'x 833

(9th Cir. 2003)).

        For these reasons,               Plaintiffs'         claim related to the Thirds

Policy        shall        be     dismissed           for      lack       of      subject            matter

jurisdiction.

III. CLASS CERTIFICATION

        The    Court will          now consider Plaintiffs'                     Motion for Class

Certification.             Plaintiffs        seek       to    certify a           class         of   up   to

2, 500 "present and former Non-liturgical Navy chaplains,                                            active

duty and Reserve,               who were in the Navy or have served in the

Navy" between 1976 and the present.                           Mot. at 3, 7.               The proposed

class     includes,         but     is    not       limited         to:   (1)     chaplains           whose

"careers      have    been        injured,          terminated or otherwise                     adversely

affected by the Navy's and the CHC's unlawful bias and prejudice

against       Non-liturgical             chaplains";          (2)     chaplains           who    "saw or

experienced the Navy's Non-liturgical bias and left active duty

                                                -    24 -
or retired early rather than endure that bias and prejudice";

and     (3)   chaplains "who have not yet personally suffered career

injury as a result of the practices and policies challenged here

because manifestation of the injury has been delayed [.]"                                          Mot.

at 3-5.

        A.      Legal Standard

        "The class action is an exception to the usual rule that

litigation is conducted by and on behalf of the individual named

parties only."        Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

2550     (2011)     (citation      and    quotation              marks      omitted).             Class

certification is governed by Rule                       23       of    the Federal          Rules of

Civil Procedure.            There are two components to the certification

inquiry: first,       each of the four elements of Rule 23(a) must be

met;     second,     certification          of        the     proposed            class     must       be

appropriate        under      at   least         one        of        the    three        categories

enumerated in Rule 23 (b) .               Richards v.             Delta Air Lines,                Inc.,

453 F.3d 525, 529 (D.C. Cir. 2006).

        The     proponent     of   class       certification                must      prove       by    a

preponderance of the evidence that the requirements of Rule 23

are    satisfied.      Wal-Mart,         131     S.     Ct.      at    2548.          The     Supreme

Court     has     stated    that    "Rule      23      does       not       set    forth      a    mere

pleading         standard";        rather,            " [a]       party           seeking         class

certification        must    affirmatively             demonstrate            [its]       compliance

                                          - 25 -
with the Rule -                   that        is,     [it]     must be prepared to prove                          that

there       are        in        fact         sufficiently                 numerous             parties,        common

questions         of        law      or       fact,     etc."              Id.       at    2551     (emphasis       in

original)

        The     trial         court           must      conduct            "a        rigorous      analysis"        to

ensure      that       the        requirements                of    Rule        23    have      been    met.       Id.

This    inquiry may overlap with an appraisal                                             of    the merits,        for

"it may be necessary for the court to probe behind the pleadings

before      coming          to       rest      on     the      certification question [.]"                         Id.

(citing       Gen.      Tel.          Co.      of     Sw.      v.        Falcon,          457    U.S.    147,     160,

(1982)).        Rule 23 is not, however,                             a "license to engage in free-

ranging       merits         inquiries [,]"                and merits                questions         may only be

considered to the extent that                                 "they are relevant to determining

whether       the      Rule        23       prerequisites                for     class         certification are

satisfied."            Amgen Inc.               v.    Conn.         Ret.       Plans & Trust Funds,                133

S. Ct. 1184, 1194-95 (2013).

       B.      Rule 23 (a)

       Under        Rule         23 (a) ,      a     plaintiff            seeking          certification must

demonstrate that:                    ( 1)    the class is so numerous that                              joinder of

all    members         is    impractical;               (2)        there       are     questions        of     law or

fact    common         to    the            class;     ( 3)        the    claims          or    defenses     of    the

representative parties are typical of the claims or defenses of

the    class;       and       ( 4)      the     representative parties                          will    fairly     and


                                                       -      26 -
adequately protect the interests of the class.                                      Fed. R.      Civ.       P.

23 (a) .        These      four    requirements               are    commonly        referred      to       as

numerosity,             commonality,             typicality,                 and        adequacy            of

representation, respectively.

        The parties do not dispute that the numerosity requirement

is    satisfied;        therefore,       the     Court          confines      its       analysis       to    a

discussion of the other three requirements.

                1.      Commonality

        Rule 23 (a) (2)        requires      the existence of                  "questions of law

or fact common to the class."                           Fed.    R.    Civ.    P.    23 (a) (2).        This

requirement          was    the    basis    of      the        Supreme       Court's         decision       in

Wal-Mart.            Wal-Mart      involved         a    proposed        class       of current         and

former female employees who alleged that Wal-Mart had a                                           "strong

and uniform          'corporate culture'"                 that       "permit [ted]       bias against

women      to    infect,          perhaps      subconsciously,                 the       discretionary

decisionmaking of each one of Wal-Mart's thousands of managers -

thereby      making        every    woman      at       the     company       the       victim    of    one

common discriminatory practice."                         Wal-Mart, 131 S. Ct. at 2548.

       The      Supreme       Court    rejected               this    theory       as    a    basis     for

commonality.            It explained that the inquiry under Rule 23(a) (2)

is not whether class members                     "have all suffered a violation of

the   same      provision of          law [,]"          but    rather whether            "a    classwide

proceeding           [will]    generate        common           answers       apt       to    drive     the


                                               - 27 -
resolution of the litigation."                 Id. at 2551     (emphasis added and

citation and internal punctuation omitted) .                   In other words, the

class members'    claims must depend on a "common contention" that

is "of such a nature that it is capable of classwide resolution

-   which means that determination of its truth or falsity will

resolve an issue that is central to the validity of each one of

the claims in one stroke."               Id.   (citations omitted).

        Quoting a prior decision, the Court observed that:

        Conceptually, there is a wide gap between (a) an
        individual's claim that he [sic] has been denied a
        promotion         on discriminatory grounds, and his
         [sic]  otherwise  unsupported   allegation  that the
        company has a policy of discrimination, and (b) the
        existence of a class of persons who have suffered the
        same   injury as   that   individual,  such that  the
        individual's claim and the class claim will share
        common questions of     law or fact      and that the
        individual's claim will be typical of the class
        claims.

        Id. at 2553    (quoting Falcon,          457 U.S. at 157-58          (quotation

marks     omitted)).         The     Court      acknowledged       this     gap      could

theoretically be bridged by                "significant proof"        that    Wal-Mart

"operated under a general policy of discrimination."                           Id.      It

observed, however, that "Wal-Mart's announced policy forbids sex

discrimination,"       and   consequently,         the     "only   corporate      policy

that    the plaintiffs'      evidence convincingly establishes is Wal-

Mart's 'policy' of allowing discretion by local supervisors over

employment    matters."            Id.    at    2553-54.      A    policy    of      local

                                          - 28 -
discretion, the Court concluded, did not satisfy the commonality

requirement          because    it      "is    a     policy       against       having    uniform

employment           practices[,]"        and        therefore,          "demonstrating        the

invalidity of one manager's use of discretion will do nothing to

demonstrate the invalidity of another's."                           Id. at 2554          (emphasis

in original).

       In this case,        just as in Walmart,               Plaintiffs do not allege

that the Navy ever had an express policy against the advancement

of Non-liturgical Protestants.                      Instead, they rest their case on

an   array      of    individual        anecdotes          they    contend       demonstrate     a

"pervasive pattern of religious preference."                                Yet the theories

of     religious        discrimination             reflected        in     these       individual

anecdotes       vary     widely.          Some        of    the    Individual          Plaintiffs

conclude      that      they     were     discriminated            against       because      they

believe      themselves         to   be       more     qualified         than    chaplains      of

different       faiths     who       fared         better     in    the     Chaplain        Corps'

personnel system.              Others complain of poor fitness reports and

unfavorable work assignments                   issued by their              superiors,       which

they    blame    on     interpersonal          disputes       combined          with     religious

animosity,      retaliation,         and/or racial or gender discrimination.

Yet others tell extended narratives of local command officers or

senior     chaplains        interfering              with    their        ministry        efforts,




                                              - 29 -
prayer,     or     worship      styles      for     a        variety      of       reasons    they

attribute to religious hostility. 13

        These diverse circumstances and theories of discrimination

undermine       Plaintiffs'      efforts     to   establish            commonality       at    the

outset.         See,    e.g.,   Wal-Mart,     131       8.    Ct.    at     2557     (plaintiffs

could    not     show    commonality because            they        "held      a   multitude     of

different jobs,         at different levels of Wal-Mart's hierarchy,                           for

variable       lengths of time,        in 3, 400        stores,      sprinkled across            50

states"    and were        subjected     "to a      variety of            regional      policies

that all differed");            Garcia v.    Johanns,          444 F.3d 625,           632    (D.C.

Cir.    2006)     ("Establishing commonality for a disparate treatment

13
   By way of illustration, one chaplain attributes his non-
selection for promotion to rumors spread about his "stability
and performance" following a referral for psychiatric evaluation
after his "liberal" command Chaplain overheard him telling his
wife   that  his   ministry was    "truncated by demonic     forces
personified by Chaplains."    Addendum A to Consol. Compl. ~ 50.
Four other chaplains stationed in Naples, Italy contend that
they received poor fitness       reports   from Catholic   superior
officers for praying "in Jesus name."     Id. ~~ 5, 10, 18, 62-63.
A chaplain stationed in Okinawa, Japan from 1991 until 1993
claims that "his Liturgical Protestant rating chaplain gave him
a poor fitness report" for failing "to support his rater's .
prayer breakfasts" and "preaching that men who call themselves
Christians should live as Christians."     Consol. Compl. ~ 184(b).
Another chaplain believes his non-promotion was retaliation by a
Catholic board member who allegedly accused him of "stealing
sheep" after baptizing a woman who asked to be baptized by
immersion.   Id. ~ 184(g).   Another chaplain resigned after being
investigated by the Navy for sexual harassment but attributes
the investigation to religious discrimination.       Addendum A to
Consol. Compl. ~ 3 0.      Two Hispanic chaplains claim to have
suffered a combination of religious and racial discrimination.
Id.  ~~  40,  54.    These types of individualized allegations
pervade the Consolidated Complaint.
                               - 30 -
class          is     particularly     difficult         where,      as    here,    multiple

decisionmakers with significant local autonomy exist.")

        Nevertheless,          as our Court of Appeals has emphasized,                      the

commonality requirement               is    not   a    predominance        requirement      and

"even      a        single   common   question        will    do."     D.L.   v.    Dist.    of

Columbia,            713 F.3d 120,    128    (D.C.     Cir.    2013)      (citing Wal-Mart,

131   S.        Ct.     at   2556).     Therefore,           the   Court    shall   consider

whether Plaintiffs have               identified any common issue of                  law or

fact tying their injuries together. 14


14
    Plaintiffs argue that the Court's 2002 class certification
decision in Adair, 209 F.R.D. at 10, is the "law of the case,"
thereby governing the Court's analysis on this Motion.       Sur-Sur-
Reply at 6.    The Adair Class Certification Order was vacated at
Plaintiff's request on May 30, 2006, and is, therefore, no
longer "law of the case."       Coalition to End Permanent Congress
v. Runyon, 979 F.2d 219, 221 n.2 (D.C. Cir. 1992) (once vacated,
an opinion is "no longer law of the case")           (Silberman, J.,
dissenting).     Furthermore, in light of Wal-Mart, many of the
Court's conclusions in Adair are no longer good law.              For
example, the Adair decision held that, "[i]n determining whether
to certify a class, the court should not consider the underlying
merits of the plaintiff's claims," and should "accept as true
the allegations set forth in the complaint."       Adair, 209 F.R.D.
at 8.    Wal-Mart, however, makes clear that "Rule 23 does not set
forth a mere pleading standard" and the "party seeking class
certification must affirmatively demonstrate [its] compliance
with the Rule      that is, [it] must be prepared to prove that
there are in fact             common questions of law or fact [.]"
Wal-Mart, 131 S. Ct. at 2551 (emphasis in original).       Similarly,
in Adair, the Court based its commonality finding on Plaintiffs'
allegations     of    "a    pervasive     pattern"    of    religious
discrimination.    Adair, 209 F.R.D. at 10.     In Wal-Mart, however,
the Supreme Court held that such allegations do not satisfy Rule
23(a) (2) unless there is "significant proof" that the defendant
"operated under a general policy of discrimination."        Wal-Mart,
131 S. Ct. at 2553.      In fact, as our Court of Appeals recently
                                - 31 -
                       a.        "Culture" of Denominational Favoritism

        Just as in Wal-Mart, Plaintiffs rely heavily on allegations

of a pervasive             ~culture       of prejudice" in the CHC.                         Mot.    at 16,

37.     They argue that the                  ~common            issue in each class member, s

individual      case        is     the      Navy, s        systemic       and      institutionalized

culture      of prejudice against                        Non-liturgical           chaplains        and    the

faith        groups         they         represent,              and    the         resulting            twin

unconstitutional                 message            of          favoritism            for     preferred

denominations and prejudice against Plaintiffs,                                     [sic] "        Mot. at

39;    see    also     id.       at    5,     14,         15,    28,   29,      31.         They    define

~organizational            culture"         as   a.       ~set    of   common understandings,"

composed       of     shared          ~values,      ,,     ~assumptions,"             and    ~beliefs,"


~around      which action is organized.,,                          Mot.      at    15-16      (citations

omitted)

       Under Wal-Mart,             this theory only satisfies the commonality

requirement if the Navy,s culture of prejudice is so strong as

to    suggest       that    the       Chaplain Corps              operated under a                 ~general




observed,   ~wal-Mart 's interpretation of Rule       23 (a) (2) has
changed the landscape" of class certification.      D. L., 713 F. 3d
at 126-27    (citations omitted).     Con~equently,    neither the
Court,s 2002 certification order in Adair nor the other pre-Wal-
Mart commonality cases on which Plaintiffs rely are controlling.
See Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625, 632 (D.C.
Cir. 2010) (noting exception to ~law of the case" doctrine where
there is an ~intervening change in controlling law").

                                                 - 32 -
policy" of discrimination. 15                 Plaintiffs have not come close to

satisfying this demanding standard.

      First,        the      Navy's          guiding           documents      clearly         and

unequivocally seek to promote a culture of tolerance,                              not bias.

For   example,         the       Chaplain         Corps'         written      "Professional

Standards"        expressly        state      that       the    Chaplain      Corps     "is     a

religiously impartial governmental organization with no inherent

theology     of     its     own"     which        exists        to   "empower     individual

chaplains"        to   accommodate            "the       religious         requirements        of

personnel of all faiths."                   SECNAVINST 5351.1(5).             The Standards

further    provide        that     "[i] t    is    the    policy      of    the   CHC   to     be

equally    tolerant        of    every       Service      member                  and    other

authorized persons           irrespective of             that    individual's      religious

15
   While Plaintiffs bring their discrimination claims under the
First and Fifth Amendments, not Title VII as in Wal-Mart, they
fail to offer any other viable theory as to how a class-wide
determination of "culture" might resolve an issue central to
their claims.    They do not "allege hostile work environment
claims under Title VII[.]"   In re Navy Chaplaincy, 850 F. Supp.
2d 86, 116 (D. D.C. 2 012) ("In re Navy Chaplaincy II") .   They
argue vaguely that the Establishment Clause required Defendants
to maintain a "denominationally neutral" culture.    Reply at 9.
But while they are correct that "[t]he government must be
neutral when it comes to competition between sects," Zorach v.
Clauson, 343 U.S. 3 06, 314 ( 1952) , they cite no authority for
the proposition that the Government must go beyond a policy of
neutrality to,   in fact,   achieve a denominationally neutral
culture.  Consequently, the Court considers Plaintiffs' "culture
of prejudice" theory only insofar as it might demonstrate that
the Navy operates under a        "general policy"  of religious
discrimination.


                                             - 33 -
beliefs     or    unbelief"          and       to        endeavor          to     "accommodate        the

religious beliefs of all to the fullest possible extent."                                             Id.

encl. 2 (2),     (5)    (emphasis added).

       Likewise,        the    Chaplain            Corps'       Guiding          Principles,      which

"communicate        the       values       that      hold· the             CHC     together      as    an

institution       and     serve      as    a       point       of    reference         for    chaplains

throughout their careers,"                  state that              "[w] e seek to understand

cultural    and     religious            values      that       differ          from   our    own"    and

"believe the right to exercise our faith is best protected when

we protect the rights of all to worship or not worship as they

choose."     Id., encl. 4.

       To   prove       that    a    "culture            of     denominational            favoritism"

nevertheless exists, Plaintiffs rely primarily on affidavits and

deposition       testimony          in    which          they       and    other       Non-liturgical

chaplains    describe          particular           instances             of    hostile      treatment,

retaliation,      and/or specific local command officers scheming to

suppress, take over, or shut down their Non-liturgical services.

See generally Addendum A to Consol. Compl.; Reply at 20-22; Sur-

Sur Reply at 2-3.

       However, Captain Lyman M. Smith, Executive Assistant to the

Chief of Navy Chaplains, has submitted a declaration explaining

that   "[c] ommanding officers                 at        the    local          level   have    ultimate

responsibility for providing command religious programs" in each

                                               -    34    -
of the "500 separate geographically dispersed duty assignments                                                      11




served by the CHC, and "[n]either the Chief of Chaplains nor the

Chaplain     Corps            controls     the        individual                   command               religious

programs which are in place at each duty station.                                            11
                                                                                                       Supp. Smith

Decl. at 2-3 [Dkt. No. 47-19]                   (citing OPNAVINSTR 1730.1D).

      This . decentralized               system,       combined                with           clear        Guiding

Principles         and        Professional           Standards                requiring                  religious

tolerance     and        non-discrimination,                wholly             defeats                 Plaintiffs'

suggestion that           their individual             experiences of discrimination

and   religious         intolerance       stem        from         a    "culture                  of    prejudice   11




that is common to the class as a whole.                                   See, e.g.,                   Stastny v.

S. Bell    Tel.     &     Tel.    Co.,     628       F.2d     267,        279           (4th           Cir.   1980)

 ("Substantial       degree        of     and        perhaps            almost               complete         local

autonomy in separate facilities                             . cuts against any inference

for class action commonality purposes.                        11
                                                                   );    Garcia v. Veneman, 211

F.R.D. 15, 22        (D.D.C. 2002)         (holding in discrimination case that

"[c]ommonality           is    defeated                      by         the        large           numbers      and
                                                                                   16
geographic dispersion of the decision-makers                              11
                                                                               )




      Plaintiffs also cite to a declaration submitted by Captain

Larry H.    Ellis,        who refers,        without elaboration,                                 to a general

"perception   11
                   in     the    mid-1990s           "among            non-liturgical                    chaplains

16
      Indeed,   Plaintiffs  themselves  acknowledge that their
individual experiences do not portray a "culture so much as "a                          11


series of individual incidents.   Mot. at 16.   11




                                            - 35 -
that        the        Chaplain      Corps         was             biased             toward                   liturgical

denominations            and against        non-liturgical                  chaplains.                    11
                                                                                                                  Aff.        of

Captain Larry H.             Ellis,    U.S.N.                (Retired)       ("Ellis Aff.                        11
                                                                                                                      )   ~   36

 [Dkt. No. 160-6]; see also id.                         ~~     6,    11.     However,                      neither the

Ellis Affidavit, nor the related Ellis Memorandum [Dkt. No. 132-

15]   1    suggest       that     Non-liturgical                    chaplains'             perceptions                        of

religious         bias    grew out     of        an organizational                         culture                   that     is

common to the CHC as a whole. 17

          Thus,    while        Plaintiffs              may         have     suffered                          individual

instances         of     religious    intolerance,                   there            is   no             evidence            to

suggest their experiences reflect a culture that is consistent

across time and space and common to the entire class.                                                          See Dukes


17
     In some cases, such perceptions appear to have arisen only
after individual chaplains spoke with their endorsing agencies
or read documents related to this case and other similar cases.
See, e.g., Decl. of Patrick M. Sturm~ 4 [Dkt. No. 178-7] (after
"talking with my endorser, it became obvious that CFGC chaplains
were not being treated fairly in the Navy        Add. to Consol.             11
                                                                                  )   ;

Compl. at 22, 23      (only "[a]fter reviewing the issues and
evidence related to this action,    did "CH Hatch bee [o] me aware
                                                        11


 [of] the CHC' s biased policies     id. at 26 (prior to reading
                                                   11
                                                        );

documents related to this case, CH Hendricks "believed [that the
Navy's] promotion system was fair, all records were competitive,
and faith group was not important [to promotion]        id. at 3 8                          11
                                                                                                 )    ;

 ("Prior to [hearing about the allegations in this case] , CH Mak                                               11


"believed the Navy's .       promotion system was fair and [that]
faith group was not a factor in promotion decisions      id. at 49                               11
                                                                                                      );

 ( "CH Quiles thought his non-selection was 'the luck of the
draw.'    Through one of the co-Plaintiffs, he learned of
the injustice done to him.     id. at 67 ("Prior to hearing about
                                       11
                                            );

th [is] litigation in 2002, CH Watson had no knowledge of the
evidence showing religious bias[.]                       11
                                                              ).




                                                 - 36 -
v. Wal-Mart Stores,               Inc.,    964 F. Supp. 2d 1115, 1124                    (N.D. Cal.

2013)      (concluding            on   remand       from        the     Supreme        Court     that,

although plaintiffs'                anecdotes       of discrimination                 "succeeded in

illustrating attitudes of gender bias ·held by managers at Wal-

Mart,    they failed to marshal significant proof that intentional

discrimination was a general policy affecting the entire class")

(emphasis added) .

        Therefore,         Plaintiffs'       individual anecdotes and allegations

of a     "culture of prejudice" do not provide "significant proof"

that      Defendants              "operated        under         a      general         policy      of

discrimination,"               as required under Wal-Mart.                  Wal-Mart,          131 S.

Ct. at 2553.

                          b.     Policies and Practices

        Next,        Plaintiffs        purport           to     satisfy         the     commonality

requirement          by challenging the              legality of          specific          personnel

policies            and        practices      that            allegedly         "result [ed]        in

denominational                 preferences          in         the       award         of       career

opportunities[.]"                Reply at 11.            They do not,           however,       dispute

that     the        Navy's       policies         expressly           require     denominational

neutrality and religious                   tolerance.           Instead,        they argue        that

"[e]ach        of     the       challenged        practices            allows     denominational

representatives to make subjective judgments for which there is

no accountability and no process providing effective guarantees


                                              -    37 -
that denomination does not enter into the decision."                                         Reply at

20.

       Insofar as Plaintiffs challenge facially neutral policies,

such as secret voting,                 the small size of selection boards,                             and

the practice of               appointing two             chaplains    to each board,                   they

cannot      prevail          unless    they        establish     that       the       policies         are

motivated by discriminatory intent,                          lack a        rational basis,               or

"appear      to        endorse     religion         in     the   eyes      of     a      'reasonable

observer [ . ] ' "           In   re   Navy    Chaplaincy        III,       738       F.3d    at        430

(emphasis         in    original)             As    our     Court     of    Appeals          recently

concluded,        Plaintiffs either do not allege or have not shown a

likelihood of success on the merits as to any of these theories.

Id.   at 430       ("Given facially neutral policies and no showing of

intent to discriminate,                              [plaintiffs]       have not shown                  [a]

likelihood of success [on their Equal Protection claims].")                                        i    id.

at 431 ("We feel confident that                              reasonable observers .

are most unlikely to believe that the policies convey a message

of government endorsement.").

      For     the       same      reasons,         and     because      Plaintiffs           make        no

further evidentiary showing in this Motion,                              they also have not

presented         "significant         proof"        to     support      such         theories          for

purposes     of        the    commonality          requirement       under        Rule    23 (a) (2).




                                               - 38 -
Therefore,       Plaintiffs'     attack on facially neutral policies does

not infuse Rule 23 (a) (2) commonality into their claims. 18

     Plaintiffs          also    challenge       the     so-called         "1     RC"     policy.

However,     the     evidence      they    have     presented         to        establish     the

existence of such a policy is negligible.                       It consists primarily

of a chart they prepared reflecting the religious affiliation of

promotion        board   members    from     1977       until    2002.            See     Consol.

Compl., Ex. 15 ("Prom. Bd. Chart")                 [Dkt. No. 132-16]                    The chart

indicates        that,    from    roughly    FY        1987     until      FY      2002,     each

selection        board   included    exactly           one    Roman     Catholic          member,

except     for    selection      boards     in    FY     1987    and       FY     1998,     which

included two Roman Catholic members.                    Prom. Bd. Chart at 5-13.

     The source of the information in the chart is unclear and

there are significant gaps in the data presented.                                 But even if

the Court ignores these deficiencies, the chart does not suggest

that Roman Catholics were overrepresented,                        favored,         or treated

differently than Non-liturgical board members in selection board

appointments.        To the contrary,        it shows that 75 Non-Liturgical

board members        served on selection boards                  from FY 1987 and FY

18
   In fact, this Court has already dismissed Plaintiffs' facial
challenge to various selection board practices, leaving only the
possibility of a challenge "as-applied" to "certain individual
chaplains."   See In re Navy Chaplaincy II, 850 F. Supp. 2d at
96. By definition, a claim that only applies to "certain
individual chaplains" would not support commonality as to the
entire class.

                                          - 39 -
2002,    while only 48 Roman Catholic board members served during

the same time period.                See generally Prom.              Bd.    Chart at 5-13.

Furthermore,        at    all      relevant     times,        the     Navy's          regulations

specifically prohibited               "[e] xclusion        from     board membership             by

reason      of      gender,         race,      ethnic         origin,        or         religious

affiliation."          SECNAVINST 1401.3        ~   4(a).

        Thus,     there      is     virtually       no     evidence         in        the   record

suggesting the Navy ever,              in fact,       had a "1 RC" policy, and the

mere    allegation of         such    a     policy cannot           provide       a    basis     for

commonality under Rule 23(a) (2).

        Finally,       Plaintiffs     suggest       that      the Navy's         policies        are

inadequate in a way that affects the class as a whole because,

although        individual       personnel     decisions        are      delegated          to   the

discretion        of     specific         selection        boards,       that         policy      of

delegation,       which     Plaintiffs        refer      to   as    "denominationalism,"

fails      to      protect         against      individualized               instances            of

discrimination.           See,     e.g.,    Reply at 10            ("The common theme in

all     Plaintiffs        [sic]     challenges        is      the     lack       of     effective

guarantees        ensuring        religious    neutrality           in   career         impacting

decisions."); Sur-Sur Reply at 2 ("Denominationalism is the Navy

allowing its senior chaplain[s] to exercise their denominational

bias without accountability.").




                                            - 40 -
        Notwithstanding                Plaintiffs'            use            of       the        label

"denominationalism"               to   describe       the     Chaplain            Corps'    personnel

system,    their theory of commonality boils down to a                                      complaint

that     the    Chaplain          Corps     lacks     effective             protections        against

discriminatory             decision-making           by     individual            chaplains.        See

Reply     at     20        ("Each      of     these       challenged             practices      allows

denominational representatives to make subjective judgments for

which     there       is     no     accountability           and       no        process    providing

effective guarantees that denomination does not enter into the

decision.").

        This theory of commonality is precisely the one rejected by

Walmart    and its progeny.                   See Walmart,            at    2553-54        ("The only

corporate       policy        that      the     plaintiffs'            evidence        convincingly

establishes       is       Wal-Mart's         'policy'       of       allowing       discretion      by

local    supervisors          over employment matters.")                     i    Bolden v.      Walsh

Constr. Co.,          688 F.3d 898,           893    (7th Cir. 2012)               ("Plaintiffs[]

        contend[]       that Walsh has              14 policies that                present     common

questions, but all of these boil down to the policy of affording

discretion to each site's superintendent - and Walmart tells us

that    local     discretion           cannot       support       a    company-wide         class    no

matter     how        cleverly         lawyers        may     try       to        repackage      local

variability as uniformity.").




                                               - 41 -
        In sum,      although Plaintiffs repeatedly cite to the alleged

existence       of    unconstitutional        "policies     and      practices"    as     a

basis     for        class      certification,      they    have       not    presented

"significant proof"             of any specific unconstitutional policy or

practice that applied to them across the board as a class and

produced a common legal injury.                Therefore, they may not rely on

such     policies          or     practices    to     satisfy     · the      commonality

requirement of Rule 23(a) (2).

                      c.        Statistical Evidence

        In their final effort to establish commonality,                      Plaintiffs

rely     on    statistical         evidence    purporting       to    show     religious

disparities in personnel outcomes within the CHC.

        Statistical disparities alone generally are not proof that

any particular plaintiff,              much less the class as a whole,                  has

been discriminated against.              See, e.g., Bolden,           688 F.3d at 896

("If    [defendant] had 25 superintendents, 5 of whom discriminated

              aggregate data would show that black workers did worse

than white workers - but that result would not imply that all 25

superintendents behaved similarly,                  so it would not demonstrate

commonality.").            Consequently,      Plaintiffs'    statistical evidence

can satisfy the commonality requirement only if it is so stark

as to indicate that the CHC "operated under a general policy of

discrimination," Wal-Mart, 131 S. Ct. at 2553, or suggest to the


                                         - 42 -
 "reasonable       observer"           that     the    Navy has    endorsed    a    religious

group.       In re Navy Chaplaincy III, 738 F.3d at 430. 19

        As. this Court has already found,                      and the Court of Appeals

recently      affirmed,          Plaintiffs'          statistical     evidence         to   the

extent it is even statistically significant - "does not remotely

approach the stark character" that might satisfy either of these

tests.       Id.     at    429    ("[T]he disparity between 73.3% and 83.3%

 [promotion rates] does not remotely approach the stark character

of     the   disparities          in    Gomillion        [v.   Lightfoot,     364   U.S.     339

 (1960)]     or Yick Wo          [v. Hopkins,         118 U.S. 356     (1886)] ."); id. at

431    ("Assuming arguendo that it is proper to see the 'reasonable

observer'       as    a     hypothetical              person   reviewing      an    array     of

statistics .               the figures in this case would not lead him [or

her] to perceive endorsement.").

        Furthermore,        Dr.        Leuba,    Plaintiffs'       expert,   has    expressly

stated that his statistical analysis does not purport to show

that    discrimination            infects       every CHC personnel          decision,       but

merely that "some bias will creep in" because he believes that

chaplains       of        different        faiths        "cannot    avoid     having       their


19
  Because Plaintiffs bring their claims under the First and Fifth
Amendments, not Title VII, disparate impact is not sufficient to
sustain their claims; our Court of Appeals has held that they
must   demonstrate   intentional   discrimination  or   objective
religious endorsement.   In re Navy Chaplaincy III, 738 F. 3d at
429-30 (citations omitted) .

                                                - 43 -
judgment       tainted      by     their      beliefs,         even     when    they   try     to   be

denominationally neutral."                     See       Decl.     of    Harald    Leuba,      Ph.D. ,

dated Sept.         5,    2011     ("Sept.        5,     2011,    Leuba Decl. ")        at    11,    21

 [Dkt. No. 99-3]

        In        fact,      Dr.       Leuba            emphasizes         that        intentional

discrimination on a                promotion board               "would be     a   RARE      occasion

indeed"      id.    at    2 8,   and    that      he     does     "not    opine    that      this    is

intentional,         knowing,       denominational discrimination on the part

of   the      individual         chaplains."              Statistical          Evidence       of    the

Navy's       Religious       Preferences,              Decl.     [of    Harald     Leuba,      Ph.D.]

dated      Nov.     11,    2011,       at    45        [Dkt.     No.    147-10]     (emphasis        in

original) . 20        Therefore,            Plaintiffs'          statistical       evidence        does


20
     Dr.   Leuba' s  analysis   also    suffers from   a  series   of
methodological flaws, one of which is that he "made no attempt
to control for potential confounding variables"          other than
religious denomination, such as "promotion ratings, education,
or time service," that might account for the disparities he
observed.    In re Navy Chaplaincy III, 738 F.3d at 429 (observing
that Dr. Leuba's analysis "does little for our analysis" because
"[c] orrelation is not causation") (citation and quotation marks
omitted); see also Sept. 5, 2011, Leuba Decl. at 21 ("The data
show statistical correlation; they do not demonstrate intent or
cause.") .   This failure renders his analysis of little value in
establishing that faith group membership is, in fact, the cause
of the observed disparities. See Love v. Johanns, 439 F.3d 723,
731   (D.C.   Cir.   2006)   ("[T]here are countless other,      non-
discriminatory explanations for any patterns in the USDA's
lending data.             Instead of conducting a relatively simple
statistical analysis (such as a multiple regression) to control
for any or all of these variables, [plaintiffs' expert] simply
reported a series of elementary cross-tabulations, from which it
is impossible       as a statistical matter       to draw meaningful
conclusions.") (citations omitted)
                                 - 44 -
not     constitute      "significant     proof"        that    intentional          religious

discrimination or religious              endorsement          is    or was        Defendants'

"standard practice."

        For    all    of   the   foregoing       reasons,          Plaintiffs       have    not

demonstrated the existence of a                  "common answer to the crucial

question why was I          disfavored."             Wal-Mart,      131 S.    Ct.     at 2552

(emphasis in original) .           Consequently,           they have not satisfied

the commonality requirement of Rule 23(a) (2).

               2.     Typicality

        Plaintiffs also fail to satisfy the typicality requirement

of Rule 23 (a) (3).         This provision requires that "the claims or

defenses of the representative parties are typical of the claims

or defenses of the class."              Fed. R. Civ. P. 23 (a) (3).                  Like the

commonality         requirement,   it        seeks    to   "measure         the    degree    of

interrelatedness between the claims in a class action," but it

"is   more     exacting because         it    requires        sufficient          factual   and

legal    similarity between the class representative's claims and

those of the class to ensure that the representative's interests

are   in fact        aligned with those of the absent                   class members."

William B. Rubenstein, Newberg on Class Actions                         §    3:31    (5th ed.

2013).        The typicality requirement               is satisfied only "if each

class member's claim arises from the same course of events that

led to the claims of the representative parties and each class

                                         -    45 -
member makes         similar legal       arguments    to prove the defendant's

liability."          Pigford v.       Glickman,   182 F.R.D.       341,    349·   (D.D.C.

1998).

        As discussed,        Plaintiffs have not shown that their claims

have even a single question of law or fact in common with any of

the absent class members.               Consequently,       it would be impossible

to conclude that         their claims        "arise from the            same    course of

events" or are otherwise "typical" of the absent class members

claims.       See Falcon,       457 U.S.    at 157-58 n .13         (noting that the

"commonality and typicality requirements                            tend to merge") ;

Daskalea v. Washington Humane Soc.,                 275 F.R.D. 346,        358    (D.D.C.

2011)     (typicality        requirement    not     met   where     "members      of   the

proposed class suffered a wide range of deprivations                                   and

claim distinct injuries"); Webb v. Merck & Co., Inc., 206 F.R.D.

399,    408   (E.D.    Pa.    2002)    (analyzing commonality and typicality

together       and     concluding        that     neither        were     met     because

"[p] laintiffs were          employed     in different       states,      in different

divisions,      in    different        facilities     and    at    different       levels

within the company hierarchy.                        In essence, this action is

nothing       more     than      a     consolidation        of     20     accounts      of

individualized disparate treatment.").




                                         - 46 -
         In sum,      Plaintiffs have also failed to meet the typicality

requirement of Rule 23 (a) (3) . 2 l

                3.      Adequacy of Representation

         The    final    requirement          for   class     certification under Rule

23 (a)     is    that     "the     representative           parties    will      fairly    and

adequately protect the interests of the class."                          Fed. R. Civ. P.

23 (a) (4).      "The adequacy requirement is satisfied upon a showing

that     (1)    there is no conflict of interest between the proposed

class representative and other members of the class, and (2) the

proposed        class     representative            will    vigorously     prosecute       the

interests of the class through qualified counsel."                               Alvarez v.

Keystone Plus Constr. Corp., No. 13-602, 2014 WL 1400846, at *6

    (D.D.C. Apr.      11, 2014)     (citations and quotation marks omitted).

"The     inquiry        into    adequacy       of    representation,       in    particular,

requires        the     district        court's       close    scrutiny,        because    the

purpose of Rule            23 (a) (4)    is     to ensure due process            for absent

class members, who generally are bound by a judgment rendered in

a class action."               Rattray v. Woodbury County,             614 F.3d 831, 835

(8th Cir. 2010).

         Defendants        argue        that        Plaintiffs     are     not      adequate

representatives           because        "their       paramount       interest     in     this


2
  Having concluded as much, the Court need not reach Defendants'
    l

challenge to Plaintiffs' "mix and match" theory of typicality.
See Opp'n at 41-42.
                                               - 47 -
litigation      is     the     advancement      of        their    collective          goal    of

institutional reform," which is not necessarily aligned with the

individual interests of each class member.                        Opp'n at 45-46.             The

Court agrees.

        By bringing      their       claims    in    this       Court,     where       they   are

limited to declaratory and injunctive relief, rather than in the

Court of Federal Claims,              where no such limits are present,                       and

by further seeking to certify the class under Rule 23(b) (1)                                  and

(b) (2),    Plaintiffs        are    jeopardizing         the     rights       of    individual

class members to seek the full range of remedies to which they

may   be    entitled.         See    Wal-Mart,       131    8. Ct.       at     2559     (noting

"perverse incentives for class representatives to place at risk

potentially valid claims for monetary relief" in order to ensure

class      certification) .           Plaintiffs'          desire        for    wide-ranging

institutional reform therefore may very well be in conflict with

the interests of specific class members to obtain individualized

and/or monetary relief.

        Furthermore,     Plaintiffs          have    repeatedly          subordinated         the

proposed     class     members'          interests    in     prompt       adjudication         of

thei:J;" claims to their campaign for                 institutional reform.                   For

example,      rather    than        expeditiously         preparing        this       case    for

trial,     Plaintiffs        filed   a    series     of    unsuccessful             motions   for

injunctive relief and related appeals, which have taken years to

                                            - 48 -
resolve.        See Chaplaincy of Full Gospel Churches,                             454 F. 3d at

295     (describing         Plaintiffs'         "prolonged          series    of    motions      and

petitions")          (citations omitted).

        In 2006,       further delaying any prompt adjudication of this

lawsuit,        Plaintiffs           moved     this    Court        to     vacate     its     Order

granting        class       certification.              They        acknowledge        that      one

significant reason for that request was to permit their counsel

to    file     Gibson as         a   new putative        class       action     in a       separate

ju~isdiction          and    thereby          avoid    rulings        of     this    Court       they

perceived as          hostile to            their quest       for    institutional          reform.

See Pl.'s Reply at 27; Pl.'s Opp'n to Defs. Mot. for P. Summ. J.
                                       22
at 30-31 [Dkt. No. 172]

        Thereafter,         in       conjunction       with     the        filing    of     Gibson,

Plaintiffs took further actions that                          significantly delayed the

progress of this case.                      For example,       after the District Court

sitting in the Northern District of Florida granted Defendants'

motion to transfer Gibson to this Court,                             Plaintiffs asked this

Court     to    stay     the         case    while     their        counsel     unsuccessfully

appealed       the    Florida         District       Court's     transfer          order    to    the


22
    Plaintiffs suggest that class decertification was a "logical"
step because of the Court's "four-year delay in defining the
class [.]"  Pls.' Reply at 27.   Yet there is no indication that
Plaintiffs ever asked the Court to define the class or that its
failure to do so resulted from anything other than the extensive
litigation surrounding other issues in the case,        including
Plaintiffs' many Motions for injunctive relief.
                              - 49 -
Court of Appeals for the Eleventh Circuit.                               See Gibson Dkt. No.

4.      Thereafter,          Plaintiffs      filed        yet    another     motion    in    this

Court     to    transfer       Gibson       back     to     the,    Northern     District      of

Florida, which was also unsuccessful.                           See Gibson Dkt. Nos. 5 &

6.     These actions alone set the progress of this case back by

approximately two years.

        Moreover,      in moving for class decertification in this case

in 2006,       Plaintiffs stated that they were "no longer willing or

able     to     represent       or     to     assume        the     burdens      inherent      in

representing        the      class"    because        of        recent    changes     to    their

employment status and other life transitions.                              See Pls.' Mot. to

Vacate Order Granting Pls.'                  Mot.    to Certify Class at 2                  [Adair

Dkt.    No.    156].      Plaintiffs have not explained why,                     having once

abandoned their willingness to represent the class, they are now

willing and able, once again, to serve as class representatives.

        Finally,       the    Court    notes        the     existence       of   an   entirely

different type of conflict of interest.                            In the context of this

Motion,        Plaintiffs       have        deviated        significantly        from       their

original core allegation that the Navy's bias lies against Non-

liturgical Protestants as a class.                        They now argue that the Navy

actually       favors     certain      "liberal"          Non-liturgical         Protestants,

such      as     Baptists,           but     disfavors             "[t]heologically          more

conservative" Non-liturgical denominations.                          Mot. at 17-18.

                                             - 50 -
        Plaintiffs'       readiness            to   draw     divisions     among    members         of

the proposed class strongly indicates that they cannot be fair

and impartial representatives of the class as a whole.                                    Baptist

class members          (or     those     of     other      "liberal"     faiths)    might       have

legitimate concerns that Plaintiffs will not zealously represent

their     interests.           See    Phillips        v.     Klassen,    502    F. 2d    362,       366

(D.C.         Cir.     1974)         ("Class         members       whose        interests           are

antagonistic in fact to,               or even 'potentially conflicting' with,

the interests of the ostensibly representative parties cannot be

bound,       consistent with the               requirements of          due process,           to    an

adjudication          taken    in    their name."            (quoting Hansberry v.              Lee,

311    u.s.    32, 41-42       (1940))    23



        In    sum,    Plaintiffs'         litigation          record,    considered        in       its

entirety,        raises       serious      questions          as   to    whether        they    will

properly protect and prioritize the welfare and interests of the

class members,          especially to the extent                   such interests diverge

from     their       determination        to        obtain    broad     scale    institutional

reform.        Cf.    E. Texas Motor Freight Sys.                  Inc. v.      Rodriguez,          431



23
   While the Court acknowledges that some of the named Plaintiffs
are themselves Baptist, that fact does not resolve its concerns.
Other Baptist chaplains, as well as chaplains of deriominations
that Plaintiffs consider to be "liberal," may or may not agree
with Plaintiffs' view that they are "favored" by the Navy's
policies and may, in any event, be concerned that Plaintiffs'
counsel will treat them differently from other members of the
class.

                                                - 51 -
U.S. 395, 405         (1977)       (named plaintiffs' request for relief that

was inconsistent with vote of class members and their "failure

to   protect        the     interests       of     class       members       by       moving            for

certification         surely       bears    strongly          on    the    adequacy              of     the

representation            that     those        class    members          might        expect

receive")

      For     all     of     the    foregoing       reasons,         Plaintiffs             have        not

demonstrated that they are adequate class representatives.

      C.      Rule 23 (b)

      Even         assuming        Plaintiffs           had        satisfied               the         four

prerequisites set forth in Rule 23(a), they would still bear the

burden of establishing that the class is maintainable under one

of   the    subdivisions of Rule 23 (b) .                  As discussed below,                         they

also fail to meet this burden.

              1.      Rule 23(b)(l}

      Under        Rule     23(b) (1),     certification            is    appropriate                 where

requiring      the        prosecution      of     separate         actions       by        individual

class members would run the risk of establishing "incompatible

standards     of      conduct"       for    the     defendants,           Fed.        R.     Civ.        P.

23(b) (1) (A);       or    where     individual         adjudications            would,           "as     a

practical matter,                    be dispositive of the interests of the

other members         not     parties      to    the    individual         adjudications                 or

would substantially impair or                    impede their ability to protect

                                            - 52 -
 their interests."         Fed. R. Civ. P. 23 (b) (1) (B).               Since there is

 "always    some      risk''     that     individual        actions    may      expose    a

defendant     to conflicting            judgments on liability,             certification

under subdivision (b) (1) (A)            requires "something more               namely, a

 legitimate        risk        that      separate         actions      may      establish

 'incompatible standards of conduct, '"                   so as to make individual

actions     "'impossible or unworkable. '"                 Daskalea,     275 F.R.D.      at

365    (emphasis      in   original) (citing         2    H.   Newberg      & A.     Conte,

Newberg on Class Actions§ 4:4                (4th ed. 2002)) and Wal-Mart, 131

S. Ct. at 2558)

       The Court finds virtually no risk that prosecuting separate

actions       by      individual          class      members         would      establish

"incompatible standards of               conduct"        for Defendants.        At    least

five   district      courts     and two      Courts       of Appeals     have      examined

Plaintiffs' allegations               (or substantially similar ones) over the

past decade and none has found the Navy's current policies to be

unlawful,     much less accepted Plaintiffs'                   invitation to rewrite

such policies        in their entirety. 24               Consequently,       there   is no

legitimate         risk    that        maintaining        separate     actions        would

establish     incompatible            standards   of      conduct     for     Defendants.


24
  See In re Navy Chaplaincy III, 783 F.3d at 429-431, Larsen I,
525 F.3d 1; Larsen II, 887 F. Supp. 2d 247; Larsen v. U.S. Navy,
486 F. Supp. 2d 11 (D.D.C. 2007); Wilkins Mem. Op. of June 29,
2005, aff'd 232 F. App'x 710 (9th Cir. 2007); Sturm Mem. Op. of
June 18, 2002, aff'd 76 F. App'x 833 (9th Cir. 2003);
                             - 53 -
        Likewise,       separate actions would not impair or impede the

ability of           nonparties      to protect       their      interests.          Quite    the

contrary:       allowing the case to proceed as a class action might

have      preclusive          effect    for    absent        class        members,        thereby

impairing their ability to protect                       their own interests.                Wal-

Mart,     131 S. Ct. at 2559            (noting that class certification under

Rule      23 (b) (2)         created    possibility         "that         individual        class

members'        compensatory-damages            claims       would        be     precluded     by

litigation they had no power to hold themselves apart                                     from").

Requiring separate actions, however, will not prevent any absent

class member from challenging the Navy's personnel practices or

bringing an individual discrimination claim in the future.

        Consequently,          Plaintiffs have not            shown that the proposed

class is maintainable under Rule 23(b) (1).

                2.      Rule 23 (b) (2)

        Rule    23 (b) (2)     is    satisfied where         "the party opposing the

class     has        acted    or    refused    to     act     on        grounds    that     apply

generally       to     the     class,   so    that       final     injunctive        relief    or

corresponding declaratory relief                    is    appropriate          respecting the

class as a whole[.]"                Fed. R. Civ. P. 23(b) (2).                 The "key to the

(b) (2)    class       is    the    indivisible       nature       of    the    injunctive     or

declaratory remedy warranted                    the notion that the conduct                    is

such that it can be enjoined or declared unlawful only as to all

                                             - 54 -
of the class members or as to none of them."                        D.L., 713 F.3d at

125   (citing      Wal-Mart,       131    S.     Ct.   at   2557)      (quotation        marks

omitted) .

      Rule 23 (b) (2)       thus     "applies only when a single injunction

or declaratory judgment would provide relief to each member of

the class.        It does not authorize class certification when each

individual        class   member         would    be    entitled       to    a    different

injunction or declaratory judgment against the defendant."                                 Id.

(citing Wal-Mart,         131 S. Ct. at 2557).              Thus,      it is not enough

for   class   plaintiffs       to     "superficially structure[]                 their    case

around a claim for class-wide injunctive and declaratory relief

      . if as a substantive matter the relief sought would merely

initiate      a     process        through        which     highly          individualized

determinations of liability and remedy are made;                             this kind of

relief would be class-wide in name only,                     and it would certainly

not be final."        Jamie S. v. Milwaukee Pub.                 Sch.,      668 F.3d 481,

498-99 (7th Cir. 2012).

      As   discussed        above,       Plaintiffs       have   not     identified        any

"common harm suffered as a result of a policy or practice that

affects    each     class    member."            Id.      Furthermore,        the   primary

relief they seek under Rule 23(b) (2)                   is an order declaring the

results of each of their respective selection board proceedings

"void ab initio."         Assuming such an order is available under the


                                           - 55 -
case    law     in    this       Circuit,          it     certainly       would    not    constitute

"final"       relief    to       the       class     as    a     whole.      Instead,          it    would

merely       initiate       a   process        by which          individual        chaplains         would

seek reinstatement,                  new selection board proceedings,                     correction

of their personnel records, and backpay.

       For     these     reasons,             Plaintiffs          have    not     shown    that           the

proposed class is maintainable under Rule 23(b) (2).

               3.      Rule 23 (b) (3)

       Finally,       Plaintiffs seek certification under Rule 23 (b) (3).

Certification          under         this     subsection          is    appropriate       where          "the

questions       of    law       or    fact     common       to    class    members       predominate

over    any    questions             affecting          only     individual       members"          and    "a

class action is superior to other available methods for fairly

and efficiently adjudicating the controversy."                                    Fed.    R.    Civ.       P.

23(b)(3).              "[T]he              predominance           inquiry         duplicates              the

commonality          analysis          in     many        respects,"        but     is    "far           more

demanding"      and delves             "further into the                relative     importance of

the    common       issues      to     the    case."           Daskalea,     275    F.R.D.          at    368

(citing Amchem Prods.,                 Inc. v. Windsor,                521 U.S. 591,      624        (1997)

and Barnes v.         District of Columbia,                     242 F.R.D.        113,   123        (D.D.C.

2007)).        Ultimately,             a     class      should     be     certified       under          Rule

23 (b) (3)    "only when it would achieve economies of time,                                    effort,

and expense,         and promote uniformity of                          decision as       to persons


                                                   - 56 -
similarly situated,            without    sacrificing procedural          fairness   or

bringing     about    other      undesirable        results."      Myers     v.   Hertz

Corp.,   624 F.3d 537,          547   (2d Cir.     2010)     (citation and internal

punctuation omitted))

     Here,     Plaintiffs        have     failed     to    demonstrate     commonality

under Rule      23 (a) (2) ,    and     therefore,      they necessarily fail        to

satisfy the       "far more       demanding"       requirement     of predominance.

Furthermore,      for all of the many reasons set forth above, class

certification would not achieve economies of time,                        effort,    and

expense,    but   instead would exponentially complicate                    the   case;

place at risk individual claims of absent class members that may

overlap with the allegations in the Consolidated Complaint; and

jeopardize Defendants'            rights    to     individualized determinations

on   myriad     fact-specific           claims     of     discrimination    and     Free

Exercise      harm.       In     sum,      Plaintiffs       have   also    failed     to

demonstrate that the proposed class is maintainable under Rule

23(b)(3).




                                          - 57 -
IV.   CONCLUSION

      For    the   foregoing   reasons,       Plaintiffs'   Motion   shall   be

denied,     and their claim relating to the Thirds Policy shall be

dismissed for lack of subject matter jurisdiction.




September 4, 2014



Copies to: attorneys on record via ECF




                                   -   58 -
