UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

} } IN RE: NAVY CHAPLAINCY } Case No. 1:07-mc-269 (GK} } ~~~~~~~~~~~~~~~~->

MEMORANDUM OPINION

Plaintiffs, 65 current and former Non-liturgical Protestant

chaplains in the United States Navy, their endorsing agencies, and

a fellowship of non-denominational Christian evangelical churches,

bring this consolidated action against the Department of the Navy

and several of its officials. Plaintiffs allege that Defendants

discriminated against Non-liturgical Protestant chaplains on the

basis of their religion, maintained a culture of denominational

favoritism in the Navy, and infringed on their free exercise and

free speech rights.

This matter is before the Court on Plaintiffs' Motion for

Modification and/or Clarification of the Court's Decision to

Dismiss Certain Plaintiffs under the Statute of Limitations

("Motion") [Dkt. No. 203 J Upon consideration of Plaintiffs'

Motion, and Plaintiffs' Errata [Dkt. No. 206], Defendants'

Opposition to the Motion [Dkt. No. 208], Plaintiffs' Reply [Dkt.

______ No._ :212L and the entire record herein, and for the reasons set - - -

forth below, Plaintiffs' Motion shall be denied. I . BACKGROUND

A brief recitation of the facts is necessary to resolve

Plaintiffs' Motion. For a more detailed summary of the facts and

procedural history, see this Court's September 26, 2014 Memorandum

Opinion resolving the Cross-Motions for Summary Judgment [Dkt. No.

194] .

This consolidated case is composed of three cases filed by

the same counsel: Chaplaincy of Full Gospel Churches v. England,

Civ. No. 99-2945 ("CFGC"); Adair v. England, Civ. No. 00-566

("Adair"); and Gibson v. Dep't of Navy, Civ. No. 06-1696

·("Gibson"). CFGC and Adair were filed in this Court on November 5,

1999, and March 17, 2000, respectively, and were consolidated for

pretrial purposes on September 26, 2000 [Adair Dkt. No. 21]. On

April 28, 2006, Plaintiffs' counsel filed Gibson as a separate

putative class action in the Northern District of Florida, and

that case was subsequently transferred to this District pursuant

to

. See Mem. Order, dated August 17, 2006, at 1

[Gibson Dkt. No. 1].

On June 18, 2007, the Court consolidated all three actions,

concluding that they raise "substantially similar constitutional

challenges to the Navy Chaplaincy program." Mem. Order, dated June.

18, 2007, at 4 [Dkt. No. 11]. Between 2002 and 2009, the parties

conducted discovery, interspersed with collateral litigation and - 2 - three interlocutory appeals to the D.C. Circuit. At the Court's

request, on October 3, 2012, Plaintiffs filed a Consolidated

Complaint [Dkt. No. 134] comprised of all the claims at issue in

the consolidated case.

On September 26, 2014, the Court granted Defendants' Motion

for Partial Summary Judgment, finding that many of Plaintiffs'

claims were time-barred. 1 See Memorandum Opinion on Motions for

Partial Summary Judgment ("Summary Judgment Opinion") [Dkt. No.

194] . The Court also ordered the parties to submit a joint Notice

identifying the remaining claims following its Order.

The

parties submitted their Notice on October 24, 2014 [Dkt. No. 199]

and a Status Conference was held on November 5, 2014.

On November 19, 2014, Plaintiffs filed their present Motion

for Modification and/or Clarification [Dkt. No. 203]. Defendants

filed their Opposition on December 18, 2014 ("Opp'n") [Dkt.

No. 208] , and Plaintiffs filed their Reply on January 12, 2015

("Reply") [Dkt. No. 212].

1 Specifically, the Court granted summary judgment to Defendants on: "all CFGC claims based on policies or personnel actions ---fi.naI1 zea-pr ior ~Novem15er 5-,-r9-9-3;-ai-1-Aacrtr-c1.-a:.tm-s-rra:s-e-d-on policies or personnel actions finalized prior to March 17, 1994; and all Gibson claims based on policies or personnel actions finalized prior to April 28, 2000." Order dated September 26, 2014 [Dkt. No. 193] - 3 - ...

II. LEGAL STANDARD 2

Under Federal Rule of Civil Procedure 54 (b) the Court has

discretion to reconsider its own interlocutory decisions as

justice requires at "any time before the entry of a judgment

adjudicating all the claims and all the parties' rights and

liabilities[,]" Fed. R. Civ. P. 54(b).

Our Court has consistently held that Rule 54(b)

reconsideration may be granted "as justice requires.# Cobell v.

Jewell,

(D.C. Cir. 2015); Judicial Watch v. Dep't

of Army,

(D.D.C. 2006). Under the "as

justice requires" standard, a court may consider whether it "has

patently misunderstood a party, has made a decision outside the

adversarial issues presented to the [c]ourt by the parties, has

made an error not of reasoning, but of apprehension, or where a

controlling or significant change in the law or facts [has

occurred] since the submission of the issue to the court." Judicial

Watch,

(quoting Cobell v. Norton,

Plaintiffs state in the first sentence of their Motion that they also seek reconsideration under Fed. R. Civ. P. 59, but fail to mention Rule 59 at any other point in their Motion or Reply. In light of Plaintiffs' failure to pursue their Rule 59 argument and because this Motion is more appropriately viewed as a Rule 54(b) - ·--- ---Mori on, -Ene-Court: wi-1-1-1-i-m-1t-1c-s-arra-i-y-s-i-s--t-o-Ru-1-e-s-4-(-b-)-.--:rn-any-- ·· event, "courts have more flexibility in applying Rule 54(b) than in determining whether reconsideration is appropriate under Rule 59(e) ." Cobell v. Jewell,

(D.C. Cir. 2015) (internal quotation marks and citation omitted), - 4 - '·

266, 272 (D.D.C. 2004)). "Errors of apprehension may include a

Court's failure to consider 'controlling decisions or data that

might reasonably be expected to alter the conclusion reached by

the court.'" Singh v. George Washington Univ.,

(D.D.C. 2005) (quoting Shrader v. CSX Transp., Inc.,

(2d Cir. 1995)).

Ultimately, the "as justice requires" standard amounts to

determining "whether reconsideration is necessary under the

relevant circumstances." Judicial Watch,

.

While the court has a great deal of discretion under 54(b), it is

limited by the law of the case doctrine and "subject to the caveat

that, where litigants have once battled for the court's decision,

they should neither be required, nor without good reason permitted,

to battle for it again." Singh,

(internal

citations omitted).

III. ANALYSIS

A. The Court Correctly Held Section 2401(a) To Be Jurisdictional

Plaintiffs argue that the Court was incorrect in its

conclusion that

(a) is jurisdictional and does not

permit class action tolling. While Plaintiffs make several

arguments as to why the Court's Summary Judgment Opinion was

incorrect, they do not directly address why this Court is not bound

- 5 - by our Court of Appeals' decision in Mendoza v. Perez,

(D.C. Cir. 2014). 3

As discussed in the Summary Judgment Opinion that Plaintiffs

ask the Court to reconsider, our Court of Appeals has long held

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

because it "'creates a jurisdictional condition attached to the

government's waiver of sdvereign immunity" that "cannot be waived

by the parties" and is not subject to equitable extensions.

Mendoza,

(quoting P & V Enters. v. U.S. Army Corps

of Eng'rs,

(D.C. Cir. 2008) (citing cases)).

Under this clear and controlling precedent, the Court lacks any

authority to extend the limitations period for claims governed by

Section 2401(a). Id.; see also John R. Sand & Gravel Co. v. United

States,

, 134 (2008) (observing that a "jurisdictional"

statute of limitations "forbid [s] a court to consider whether

certain equitable considerations warrant extending a limitations

period") .

3 Plaintiffs cite to Menominee Indian Tribe of Wisconsin v. United States,

(D.C. Cir. 2010) ("Menominee I") and Menominee Indian Tribe of Wisconsin v. United States,

(D.C. Cir. 2014) ("Menominee II"), but neither case is applicable, as they ------de-a-1-wtt_h_a_a-1f-f-ere-nt-statut-e-o-f-i-±mttattorrs--p1'.'0Vrs±-on-.-r;n-- ----- --- addition, Mendoza was decided only a few months after Menominee II; presumably the Court of Appeals was aware of its recent decision in Menominee I I when it held that Section 2401 (a) is jurisdictional. - 6 - The Court of Appeals has acknowledged that it has "recently

questioned the continuing viability of this holding in light of

recent Supreme Court decisions" holding that statutes of

limitations in actions against the Government are subject to the

same rebuttable presumption of equitable tolling applicable to

suits against private defendants. Mendoza,

n.11

(citing P & V Enters.,

& n.2; Felter v. Kempthorne,

(D.C. Cir. 2007)). In addition, after briefing

on the present Motion was complete, the Supreme Court held that

the statute of limitations with respect to the Federal Tort Claims

Act in 28 U.S.C. § 240l(b) was not jurisdictional because Congress

had "provided no clear statement indicating that § 240l(b) is the

rare statute of limitations that can deprive a court of

jurisdiction." United States v. Kwai Fun Wong,

(2015).

However, because our Court of Appeals has explicitly held

that § 240l(a) is jurisdictional, and because the Supreme Court's

holding in Kwai Fun Wong is limited to § 2401 (b), this Court

remains bound by Circuit precedent as it currently exists.

B. The Court Correctly Denied Equitable Tolling of the Limitations Period

Plaintrfl:s--argue that -D~~-Circui t preceaent------ariows Secc.fon-- - -

240l(a) to tolled, even if it is jurisdictional. See Pls.' Mot.

- 7 - at 5-8. Plaintiffs rely exclusively on our Court of Appeals'

decision in Hohri v. United States,

(D.C. Cir. 1986),

vacated and remanded on other grounds,

(1987). In

Hohri, the Circuit Court held that fraudulent concealment will

toll Section 2401(a) 's six-year statute of limitations. Hohri,

. The Circuit Court's opinion was vacated by the Supreme

Court on unrelated jurisdictional grounds. Hohri,

.

Since Hohri was vacated, courts in this circuit have

continuously held that because Section 240l(a) is jurisdictional,

they lack the power to toll its limitation period. See W. Virginia

Highlands Conservancy v. Johnson,

(D.D.C.

2008) (Section 2401 (a) has been construed as a jurisdictional

statute of limitations and cannot be overcome by the application

of judicially recognized exceptions such as equitable tolling or

fraudulent concealment) ; Conservation Force v. Salazar,

, 28 n.4 (D.D.C. 2011) (same), vacated and remanded

on other grounds, Conservation Force, Inc. v. Jewell,

(D.C. Cir. 2013); Appalachian Voices v. McCarthy,

(D.D.C. 2013) (same); see also John R. Sand

& Gravel Co. v. United States,

(2008) (observing

that a "jurisdictional" statute of limitations "forbid[s] a court

to consider whether certain equitable considerations warrant

extending a limitations period"). - 8 - Therefore, the Court correctly denied Plaintiffs' requests

for equitable tolling.

C. Amending the Complaint

Plaintiffs request the opportunity to amend their Complaint

prior to dismissal of the time-barred chaplains. Pls.' Mot. at 11.

Plaintiffs contend that amendment of the Complaint "to further

specify and clarify their continued injury by successive failures

of selection ( "FOS") and bias in the Reserves" will allow six

chaplains to continue as plaintiffs.

Plaintiffs' argument is unavailing. The Consolidated

Complaint was filed in October 2012 and is over 200 pages long,

including a 75 page appendix of very detailed information of the

claims for each plaintiff. Any claims Plaintiffs thought they had

should have been included in the Consolidated Complaint.

Plaintiffs argue that they did not include subsequent FOS by

various boards because they thought it unnecessary under D. C.

Circuit law and the law of the case. Pls.' Mot. at 11. Necessary

or not, Plaintiffs made a conscious decision not to include all of

their claims in the Consolidated Complaint or to seek amendment at

an earlier date. Although Plaintiffs may regret their decision to

omit claims by these six plaintiffs now that their claims have

been dismissed, that is not sufficient reason to permit them to

amend their Complaint to assert the previously omitted claims. - 9 - Plaintiffs also contend that twelve chaplains should have

been permitted to join Adair v. England as additional plaintiffs

in 2002-03, and had they been permitted to do so, they would fall

within Adair's statute of limitations. Pls.' Mot. at 14. Plaintiffs

wish to file a motion "addressing the Court's failure to allow

additional plaintiffs to join in 2002-03," but at no point do they

state what the motion will consist of or what relief they will

seek. See Pls.' Mot at 14-15, 17; Pls.' Reply at 2-6.

Given Plaintiffs' lack of specificity for why the Court should

further delay dismissing the twelve chaplains who purportedly

sought to join the Adair case in 2002, the Court sees no reason to

withhold dismissal of those plaintiffs whose claims are time-

barred.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs' Motion for

Modification and/or Clarification of the Court's Decision to

Dismiss Certain Plaintiffs under the Statute of Limitations shall

be denied. An Order shall accompany this Memorandum Opinion.

February 9, 2016 GladySKeSer United States District Judge

Copies to: attorneys on record via ECF - 10 -