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

AMENDED MEMORANDUM OPINION

Plaintiffs, current and former non-liturgical Protestant

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

for non-liturgical Protestant chaplains, and a fellowship of

non-denominational Christian evangelical churches, bring this

action against Defendants, Department of the Navy and several of

its officials. Plaintiffs allege that Defendants discriminated

against them on the basis of religion when making personnel

decisions in violation of the First Amendment’s Establishment

Clause and the equal protection component of the Fifth

Amendment’s Due Process Clause, and that Defendants also

violated the Establishment Clause by delegating governmental

authority over personnel decisions to chaplains who sat on

chaplain selection boards.

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

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

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

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

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

I. BACKGROUND

A. Factual Background 2

Congress provided for the organization of the Navy Chaplain

Corps, “whose members are commissioned Naval officers who

possess specialized education, training and experience to meet

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

families.” Adair v. England,

(D.D.C.

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

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

liturgical Protestant, non-liturgical Protestant, and Special

Worship. In re Navy Chaplaincy,

(D.C. Cir.

2012).

The term “liturgical Protestant” refers to “those Christian

Protestant denominations whose services include a set liturgy or

order of worship.” Adair I,

. In contrast,

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

I.B. (setting out in detail the procedural background of this matter). 2 For a more detailed account of the facts in this case, refer to Chaplaincy of Full Gospel Churches v. England,

(D.C. Cir. 2006) and Adair v. England,

(D.D.C. 2002) (Adair I).

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

or order in their worship service.”

Plaintiffs are current

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

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

Christian faith groups.”

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

have an ‘ecclesiastical endorsement’ from a faith group

endorsing agency certifying that the individual is

professionally qualified to represent that faith group within

the Chaplain Corps.” In re Navy Chaplaincy,

.

Chaplaincy of Full Gospel Churches and Associated Gospel

Churches are two such endorsing agencies and are among the

Plaintiffs in this case.

The Navy uses the same personnel system for all of its

officers, including chaplains. In re England,

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

careers to provide the Navy with the best qualified personnel

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

continuation on active duty; and (3) selective early

retirement.”

Chaplains, like all Navy officers, “are

recommended for promotion by ‘selection boards’ convened to

consider whether particular candidates should be promoted to a

- 3 - higher rank.” In re Navy Chaplaincy,

. Chaplain

selection boards are currently composed of seven members: two

chaplains and five other officers.

(citing SECNAVINST

1401.3A, Suppl. ¶ 1.c.(1)(f)).

Plaintiffs allege that Defendants “discriminated against []

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

promoting and maintaining illegal religious quotas and religious

preferences in their personnel decision making.” In re Navy

Chaplaincy,

(D.D.C. 2012). More

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

process results in denominational favoritism that advantages

Catholic and liturgical chaplains while disadvantaging non-

liturgical chaplains” and that “this alleged systematic bias has

left non-liturgical chaplains underrepresented in the Navy.”

.

Plaintiffs claim that, under the selection board process,

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

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

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

buttons coincide with degrees of confidence the voter has in the

record considered, ranging from 0 to 100 in 25 degree

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

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

the vote enables chaplain promotion board members to engage in

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

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

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

who vote[.]”

No other branch of the military uses the same

or similar procedures in the management of the careers of its

religious leaders.

Plaintiffs claim that, under this promotion system, which

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

that in every [Navy Chaplain Corps] personnel management

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

for Catholics first, Liturgical Protestants second, with non-

liturgical or Special Worship [faith group clusters] alternating

third and fourth.” Id. at 4-5.

Plaintiffs now move for a preliminary injunction, asking

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

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

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

accountability; and (3) placing chaplains on chaplain selection

boards without effective guarantees [that] the power to

distribute government benefits will be used solely for secular,

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

request that the preliminary injunction remain in force “until

the Court can evaluate on their merits the partial summary

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

B. Procedural Background

This dispute involves three cases, Chaplaincy of Full

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

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

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

complaint of over 85 pages, containing multiple constitutional

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

three cases raised “substantially similar constitutional

challenges to the Navy Chaplaincy program” and accordingly

consolidated the cases under the caption In re Navy Chaplaincy.

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

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

Preliminary Injunction - which is their sixth such motion for

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

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

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

Plaintiffs’ filed their Reply in support of their Motion.

Plaintiffs’ motion was denied by the District Court on

January 30, 2012. See In re Navy Chaplaincy,

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

the Court of Appeals reversed and remanded for further

proceedings. 5 See In re Navy Chaplaincy,

.

1. District Court Proceedings

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

concluding that plaintiffs lacked Article III standing,

reasoning that their asserted future injury was too speculative

because it rested on the assumption that chaplains sitting on

future selection boards would ‘necessarily favor candidates

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

the court found implausible given that Naval officers ‘are

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

re Navy Chaplaincy,

(quoting In re Navy

Chaplaincy,

).

The District Court then concluded that “even if Plaintiffs

had Article III standing, the balance of the four preliminary

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

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

In re Navy Chaplaincy,

. More specifically,

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

irreparable harm because plaintiffs had alleged an Establishment

Clause violation, the court found that plaintiffs were unlikely

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

and the public interest weighed against granting preliminary

injunctive relief.”

(citations omitted).

2. Court of Appeals Proceedings

On appeal, the Court of Appeals reversed the District

Court’s conclusion that Plaintiffs lacked Article III standing,

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

policies will likely result in discrimination is sufficiently

non-speculative to support standing.”

. The Court

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

injunctive relief, as well as its weighting of the preliminary

injunction factors[.]”

. The Court concluded that

“the district court correctly assumed that plaintiffs have

6 In order to obtain a preliminary injunction, a plaintiff “must establish [1] that [she] is likely to succeed on the merits, [2] that [she] is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of the equities tips in [her] favor, and [4] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc.,

(2008); see infra Section II (setting out in detail the legal standard for injunctive relief).

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

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

public interest weighed against granting the injunction. Id. at

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

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

professional judgment of military authorities’ regarding the

harm that would result to military interests if an injunction

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

Inc.,

(2008)).

Noting that the remaining issue was likelihood of success

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

district court’s conclusion that plaintiffs are unlikely to

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

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

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

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

discriminates against non-liturgical Protestants on the basis of

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

that “their statistical analysis provides strong evidence of a

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

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

Plaintiffs’ statistical evidence and offer their own expert

analysis, which they claim demonstrates that no such

discrimination exists. Id.

The Court of Appeals observed that “the district court made

no factual findings to resolve these competing claims” and that

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

have submitted no evidence from which the court could assume

that the future promotion boards will follow any putative

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

Chaplaincy,

)). The Court then concluded

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

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

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

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

past or future discrimination.”

Accordingly, the Court of

Appeals vacated the District Court’s denial of Plaintiffs’

Motion and remanded for further proceedings consistent with its

opinion.

3. Reassignment of the Case

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

dispute since 2001, retired and thereafter, the Calendar

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

complexity of the procedural and constitutional issues raised,

which the parties have now been litigating for well over a

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

2012 to fully explore the most efficient procedure for resolving

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

this Court dismissed without prejudice nine outstanding motions,

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

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

setting numerous deadlines in order to move the case towards

resolution.

4. Record Considered in Resolving Plaintiffs’ Motion

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

opinion on Plaintiffs’ Motion, reversing and remanding for

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

the parties to submit a joint statement identifying those briefs

and exhibits they believed constituted the record to be

considered on remand in resolving Plaintiffs’ Motion. Order

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

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

parties filed their joint statement identifying, among other

filings, briefings and exhibits on four dispositive motions,

which they agreed constituted the relevant record. Joint

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

that robust record for purposes of resolving Plaintiffs’ Motion.

II. LEGAL STANDARD FOR INJUNCTIVE RELIEF

A preliminary injunction is an “extraordinary and drastic

remedy,” Munaf v. Geren,

(2008), and “may only

be awarded upon a clear showing that the plaintiff is entitled

to such relief,” Sherley v. Sebelius,

(D.C.

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

); see Mazurek v. Armstrong,

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

burden of persuasion”).

A party seeking a preliminary injunction must establish

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

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

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

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

interest.” Winter,

.

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

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

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

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

another factor.” Davis v. Pension Benefit Guar. Corp.,

(D.C. Cir. 2009). However, the continued viability

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

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

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

free-standing requirement for a preliminary injunction.” Stand

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

12-2071,

(D.D.C. Jan. 29, 2013); Sherley,

(“[W]e read Winter at least to suggest if not to

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

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

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

quotation marks omitted).

Nor need this Court resolve this unsettled issue because a

preliminary injunction is not appropriate here, even under the

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

California!,

(“If the plaintiffs cannot

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

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

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

III. ANALYSIS

Plaintiffs’ claims rest on at least two distinct theories,

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

Because the Court of Appeals affirmed the District Court’s

rejection of Plaintiffs’ delegation theory, this Court need only

consider whether Plaintiffs are entitled to injunctive relief

under their denominational preference theory.

A. Likelihood of Success on the Merits

According to Plaintiffs, the expert testimony they have

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

practices result in clear denominational preferences in the

award of government benefits, advancing some denominations and

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

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

challenged practices are not narrowly tailored to achieve a

compelling purpose,” and therefore “fail all Establishment

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

Defendants respond that liability for discrimination based

upon religion cannot “be predicated solely on statistical

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

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

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

unconstitutional discrimination upon the basis of religion[,]”

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

empirical evidence that would suggest denominational favoritism

or discrimination correlated to the denominational affiliation

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

argument, Defendants put forward evidence from their own expert

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

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

expert’s] analyses.” Id.

The Court of Appeals directed this Court to resolve these

competing claims and to determine whether Plaintiffs are likely

to succeed on the merits of their denominational preference

theory. In re Navy Chaplaincy,

.

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

As a threshold legal issue, the parties dispute whether

Plaintiffs must show that the discrimination alleged was

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

the Navy intentionally adopted policies designed to maintain

liturgical Christian control over the Chaplain Corps. Defs.’

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

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

“argument that the plaintiffs must show intentional

discrimination” is “inconsistent with Establishment Clause

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

Mot. for Summ. J. Reply at 10.

a) Plaintiffs Bear the Burden of Demonstrating Discriminatory Intent

The Court of Appeals recognized that, under their

denominational preference theory, Plaintiffs claim that “the

Navy discriminates against non-liturgical Protestants on the

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

(emphasis added); see Adair First Am. Compl.

at 43 (claiming that Defendants “are deliberately motivated by

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

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

denominational preference theory raises First Amendment and

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

17-18; see In re Navy Chaplaincy,

(noting that

under their denominational preference theory, Plaintiffs “assert

that selection boards discriminate against non-liturgical

Protestants in making promotion decisions in violation of the

Establishment Clause and the Fifth Amendment’s equal protection

component”).

Where, as here, Plaintiffs specifically claim that

Defendants engaged in “invidious discrimination in contravention

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

decisions make clear that the plaintiff must plead and prove

that the defendant acted with discriminatory purpose.” Ashcroft

v. Iqbal,

(2009) (emphasis added) (citing

Church of Lukumi Babalu Aye, Inc. v. Hialeah,

, 540-

41 (1993) (First Amendment); Washington v. Davis,

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

Mass. V. Feeney,

(1979) (Fourteenth Amendment)

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

upon a racial minority, it is unconstitutional under the Equal

Protection Clause only if that impact can be traced to a

- 17 - discriminatory purpose.”); Brown v. Califano,

,

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

that proof of discriminatory intent, not just disproportionate

impact, is necessary to establish an equal protection violation

of constitutional dimensions.”).

Under Iqbal, “purposeful discrimination requires more than

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

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

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

adverse effects upon an identifiable group.’”

(emphasis added) (quoting Feeney,

).

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

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

factual pattern is “unexplainable on grounds other than”

purposeful discrimination. Village of Arlington Heights v.

Metro. Hous. Dev. Corp.,

(1977) (holding that

plaintiffs’ Fourteenth Amendment claim was not viable because

plaintiffs failed to carry their burden of proving that the

challenged government decision was motivated by discriminatory

intent).

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

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

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

Arlington Heights,

(emphasis added). In Gomilion

v. Lightfoot,

(1960), a local statute altered the

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

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

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

Wo v. Hopkins,

(1886), a city board of supervisors

denied building ordinance waivers to over 200 Chinese

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

applicant.

Accordingly, under Supreme Court precedent, Plaintiffs must

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

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

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

, or (2) demonstrate disparate impact “as stark

as that in Gomilion or Yick Wo,” Arlington Heights,

.

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

Plaintiffs argue that Defendants’ position on the intent

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

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

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

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

argument, Plaintiffs heavily rely on the District Court’s

statement in Adair v. England,

(D.D.C. 2002)

(Adair II) that:

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

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

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

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

(same).

Defendants respond that “nothing in the passage . . .

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

intentional discrimination (whatever that showing) in order to

demonstrate denominational preference” and that “it is clear

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

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

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

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

Plaintiffs’ contention that “Adair II rejected” the

argument that Plaintiffs must show that Defendants acted with

discriminatory intent to prevail on their First and Fifth

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

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

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

determined that, although policies that explicitly discriminate

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

scrutiny should not be applied to policies that do not

explicitly discriminate on the basis of religion unless

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

of the Navy’s policies and practices suggest a denominational

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

Court deferred “addressing the parties’ dispute about how much

of this showing can be comprised of statistical evidence until

after discovery[.]” Id. at 15 n.9.

Defendants are correct that these passages do not imply, no

less clearly state, that Plaintiffs need not show intentional

- 21 - discrimination in order to demonstrate denominational

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

subject to law of the case doctrine and may always be

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

Columbia,

(D.C. Cir. 1997); see Spirit of

Sage Council v. Kempthorne,

(D.D.C. 2007)

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

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

Moreover, the District Court had already addressed the

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

dismiss stage, delivered only months before Adair II. Therefore

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

importance of the government’s intent in the Establishment

Clause calculus[.]”

n.24.

Significantly, the District Court based its Adair I ruling,

that Plaintiffs had stated a claim under the Establishment

Clause, on the fact that Plaintiffs alleged intentional

discrimination. See

(“[P]laintiffs have properly

asserted that the Navy intentionally hires liturgical protestant

chaplains dramatically out of proportion from their overall

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

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

- 22 - adopted policies designed to maintain liturgical Christian

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

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

(emphasis added);

(“[P]laintiffs clearly offer well-

pled factual allegations that the Navy institutes ‘a deliberate,

systematic, discriminatory’ retention policy ‘whose purpose was

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

thus ensuring they would not be considered for promotion and

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

omitted).

Thus, far from rejecting the argument that Plaintiffs must

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

Adair I, recognizes that the central theory of Plaintiffs’

Establishment Clause claim rested on their being subjected to

intentional discrimination.

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

The Court of Appeals pointed out that “whether plaintiffs

are likely to succeed on the merits [of their denominational

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

showing of a pattern of past discrimination on the basis of

religious denomination and whether that pattern is linked to the

- 23 - policies they challenge.” In re Navy Chaplaincy,

(emphasis in original).

It is clear from the precedent discussed above that

Plaintiffs bear the burden of demonstrating that Defendants’

alleged “pattern of past discrimination” was motivated by

discriminatory intent. Although “[p]roof of discriminatory

intent must necessarily usually rely on objective factors . . .

[t]he inquiry is practical.” Feeney,

n.24.

“Determining whether invidious discriminatory purpose was a

motivating factor demands a sensitive inquiry into such

circumstantial and direct evidence of intent as may be

available.” Arlington Heights,

.

The evidentiary basis for Plaintiffs’ denominational

preference theory is a series of reports written by their

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

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

denominations benefitted from their position in terms of

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

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

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

favorite denominations and their respective promotion rates . .

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

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

Reply at 11 (citations omitted).

Because a preliminary injunction is an “extraordinary and

drastic remedy,” Munaf,

, it is axiomatic that

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

establish a clear and compelling legal right thereto based upon

undisputed facts,” Belushi v. Woodward,

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

Inc.,

(2d. Cir. 1966)). “If the record

presents a number of disputes regarding the inferences that must

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

that plaintiff has demonstrated a substantial likelihood of

success on the merits.” In re Navy Chaplaincy,

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

Urban Development, No. 05-00856HHK,

, at *10

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

0894,

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

Based on the existing record, the Court finds that

Plaintiffs have provided no evidence demonstrating that

Defendants intentionally discriminated against them. The

statistics proffered by Plaintiffs, without more, are not even

minimally sufficient to demonstrate the need for the

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

Munaf,

. Even if we accepted Plaintiffs’

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

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

denominational preferences in the award of government benefits,”

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

have met their burden of demonstrating probable success on the

merits because they made no attempt to show that Defendants’

alleged pattern of past discrimination was motivated by

discriminatory intent.

Instead, Plaintiffs repeatedly, and incorrectly, argue that

they do not need to show intentional discrimination to

demonstrate a likelihood of success on the merits of their

denominational preference theory, and that it is sufficient for

them to put forward statistics that merely “suggest a

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

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

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

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

proffered no evidence that Defendants adopted the challenged

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

effect on Plaintiffs. Feeney,

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

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

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

the pattern of their statistics is “unexplainable on grounds

other than” purposeful discrimination. Arlington Heights,

. For instance, Dr. Leuba found that when a candidate

considered for promotion to Commander happened to be of the same

denomination as the Chief of Chaplains, 83.3% of those

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

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

candidate considered for promotion to Commander happened to be

of a different denomination as the Chief of Chaplains, only

73.3% of those candidates were selected for promotion.

A mere 10% difference between the promotion rate of

candidates of the same denomination as the Chief of Chaplains

and candidates of a different denomination as the Chief of

Chaplains is certainly not “stark” as defined in Arlington

Heights. Plaintiffs’ demonstration of a 10% difference in

promotion rate is far removed from the pattern in Gomilion,

where the challenged local statute had the effect of removing

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

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

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

granted to all but one non-Chinese applicant.

Accordingly, Plaintiffs’ statistical evidence does not

sufficiently show that Plaintiffs are likely to succeed on the

merits of their denominational preference claim.

B. Evaluation of the Preliminary Injunction Factors

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

district court correctly assumed that plaintiffs have

demonstrated irreparable harm” and it saw no error in the

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

the public interest weighed against granting the injunction. In

re Navy Chaplaincy,

.

Evaluating the four preliminary injunction factors, this

Court concludes that Plaintiffs are not entitled to injunctive

relief. Significantly, Plaintiffs have not demonstrated that

they are likely to succeed on the merits of their denominational

preference theory because they have not provided any evidence

that Defendants intentionally discriminated against them.

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

plaintiffs’ claims might demonstrate an irreparable injury if

ultimately vindicated . . . plaintiffs have failed to

demonstrate that an injunction would not substantially injure

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

interest would be furthered by the court’s intrusion into

military personnel decisions.” In re Navy Chaplaincy,

(citing Goldman v. Weinberger,

(1986); Weinberger v. Romero-Barcelo,

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

public consequences in employing the extraordinary remedy of

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

injunctive relief.

IV. CONCLUSION

Upon consideration of the Motion, Opposition, Reply, and

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

Memorandum Opinion, Plaintiffs’ Motion for a Preliminary

Injunction is denied.

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

Copies to: attorneys on record via ECF

- 29 -