RICARDO M. URBINA, District Judge.
This matter comes before the court on the plaintiffs' sixth motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a). The plaintiffs claim that the Navy Chaplain Corps' selection board process, in which Navy chaplains cast votes resulting in the promotion of other chaplains, violates the Establishment Clause of the First Amendment to the United States Constitution. More specifically, the plaintiffs allege that the Navy's selection board process results in denominational favoritism that advantages Catholic and liturgical chaplains while disadvantaging non-liturgical chaplains.
The court has recounted the rich factual history in this case on numerous occasions, and forgoes yet another recitation of the facts.
Three cases have been commenced, all raising "substantially similar constitutional challenges to the Navy Chaplaincy program." In re Navy Chaplaincy, Miscellaneous No. 07-269, Mem. Order (June 18, 2007) at 3-4. The court ultimately determined that these cases, Adair v. England, CFGC v. England and Gibson v. Department of the Navy, should be consolidated under the caption In re Navy Chaplaincy. See id. at 4.
Although their constitutional challenges are nearly identical, the plaintiffs in each case are varied. The Adair plaintiffs are 17 current and former non-liturgical chaplains in the Navy. Adair, Mem. Op. (Jan. 10, 2002) at 2. In the CFGC case, the plaintiffs are composed of an endorsing agency for non-liturgical military chaplains called the Chaplaincy of Full Gospel Churches, and seven of its individual members. Id. Lastly, the Gibson plaintiffs consist of 41 individual plaintiffs and one organizational plaintiff, the Associated Gospel Churches, which is "a fellowship of non-denominational, evangelical churches." Gibson, Am. Compl., ¶ 3.
As is immediately pertinent here, the Navy Chaplain Corps' selection process allows Navy chaplains to cast votes for or against chaplains, potentially resulting in the promotion of chaplains to higher ranks and larger pay. See generally Pls.' Mot. for Prelim. Inj. According to the plaintiffs, chaplain selection board members vote by pressing one of five buttons (ranging from zero to one hundred in twenty-five degree increments) that are concealed in a sleeve. Id. ¶ 3. If one chaplain on the selection board presses the button for "zero," that single vote "zeroes out" the other votes, resulting in the likely non-promotion of a candidate. Id. ¶ 4. Because the voting buttons are concealed in a sleeve, chaplains' votes are and remain secret. Id. ¶ 3.
As a result of this process, the plaintiffs now move for 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, neutral and non-ideological purposes." Id. at 1. The plaintiffs have recently discovered that the government intends to proceed imminently with the selection board process, highlighting the plaintiffs' need to swiftly prevent the government from beginning its promotion cycle. With the plaintiffs' motion ripe for adjudication, the court turns to the applicable legal standards and the parties' arguments.
This court may issue interim injunctive relief only when the movant demonstrates
The other critical factor in the injunctive relief analysis is irreparable injury. A movant must "demonstrate that irreparable injury is likely in the absence of an injunction." Winter, 129 S.Ct. at 375 (citing Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). Indeed, if a party fails to make a sufficient showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors. City Fed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995). Provided the plaintiff demonstrates a likelihood of success on the merits and of irreparable injury, the court "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). Finally, "courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982).
As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). The Supreme Court has observed "that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Id. Therefore, although the trial court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted lightly. In addition, any injunction that the court issues must be carefully circumscribed and "tailored to remedy the harm shown." Nat'l Treasury Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C.Cir.1990).
As a threshold matter, the defendants challenge the court's jurisdiction to grant any injunctive relief, and to entertain the plaintiffs' claims insofar as they relate to the promotion boards. According to the defendants, "[t]he court does not possess jurisdiction to enjoin selection board proceedings" because Congress has statutorily limited the relief available by enacting 10 U.S.C. § 628. The plaintiffs respond that § 628 does not specifically address injunctions, and argue that "[h]ad [Congress] wanted to" deprive the court of jurisdiction in this regard, it would have chosen more specific language. Pls.' Reply at 10. Additionally, the plaintiffs assert that the court has jurisdiction "to enjoin unconstitutional
In 2001, Congress enacted legislation that limits a court's jurisdiction over those actions filed on or after December 28, 2001 which seek judicial review of a decision or recommendation by certain military boards. See 10 U.S.C. § 628(h). More specifically, the relevant provisions require that a person seeking judicial review of a decision made by a "promotion board" must first exhaust his or her administrative remedies by resorting to a "special selection board."
The plain language of these provisions indicates that a district court may review a promotion board's decisions only after a special selection board first considers a plaintiff's claim. 10 U.S.C. § 628(h); see also Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 704 (D.C.Cir. 2009) (observing that determining whether a statute's exhaustion requirements are jurisdictional "is a question of statutory interpretation"); Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin. Inc., 502 U.S. 32, 44, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991) (determining that the district court lacked jurisdiction because the relevant statute had "provide[d the Court] with clear and convincing evidence that Congress intended to deny the District Court jurisdiction" to review the case); Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 101-103 (D.C.Cir.1986) (noting that "the inclusion of a detailed grievance procedure to resolve [] disputes... was the strongest evidence of Congressional intent that a party exhaust administrative remedies before resorting to the federal courts"). Thus, a court lacks jurisdiction to review decisions by the promotion boards and special selection boards if a plaintiff fails to exhaust his or her administrative remedies under § 628. See Nat'l Coal. to Save Our Mall v. Norton, 269 F.3d 1092, 1095 (D.C.Cir.2001) (determining that Congress's "unequivocal intent to cut off judicial review" for a specific type of claim meant that the court lacked jurisdiction over that claim); Cotrich v. Nicholson, 2006 WL 3842112, at *2 (M.D.Fla. Dec. 19, 2006) (dismissing the case, inter alia, for lack of jurisdiction due to the plaintiff's failure to exhaust the administrative procedures in § 1558). Additionally, the court may not grant "any relief" unless certain procedural hurdles have been satisfied, i.e. the convening of a special selection board and approval of
There is, however, one critical exception carved out by Congress. Section 628(i) states that "nothing in this section" limits "the jurisdiction of any court of the United States under any provision of law to determine the validity of any law, regulation, or policy relating to selection boards." 10 U.S.C. 628(i). Stated otherwise, under § 628(i), a court retains jurisdiction to review the actions by a selection or promotion board so long as the claim seeks that the court decide the "validity of any law, regulation, or policy relating to selection boards." 10 U.S.C. §§ 1558(g), 628(i).
In reviewing § 628(i) and § 628(h), the court is persuaded that Congress did not intend to deprive this court of jurisdiction to review the alleged unconstitutional policies that guide a promotion board. The plaintiffs specifically challenge the policies used by the Navy to determine the composition and decision-making of the promotion boards. Thus, because the plaintiffs' claims challenge the validity of policies relating to promotion boards, the court concludes that it maintains jurisdiction to review these claims pursuant to § 628(i). Moreover, the court believes that § 628(h), when read in conjunction with § 628(i), does not limit the court's ability to provide injunctive relief when such relief is taken as part of determining the validity of promotion boards' policies. Motion Picture Ass'n of Am., Inc. v. Fed. Commc'ns Comm'n, 309 F.3d 796, 801 (D.C.Cir.2002) (noting that individual sections of a single statute should be construed together).
The plaintiffs assert that they have standing because they "include active duty and active duty Reserve chaplains and two endorsing agencies with active duty Navy chaplains and chaplain candidates who will be reviewed by the selection board procedures they challenge." Pls.' Mot. at 2. The defendants argue that the plaintiffs do not meet their burden in demonstrating standing because the plaintiffs cannot "show any injury-in-fact sufficient to establish their standing to seek prospective relief enjoining any future [promotion] boards." Defs.' Opp'n at 12. Specifically, the defendants contend that in requesting injunctive relief, the plaintiffs ask the court to rely on "dubious presumptions." Id.
To demonstrate standing, a plaintiff must have suffered (or in this case, will suffer) an injury in fact, which is defined as a harm that is concrete and actual or imminent, not conjectural or hypothetical. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 243 (D.C.Cir.1999) (citing Steel Co., 523 U.S. at 103, 118 S.Ct. 1003). This Circuit has made clear that no standing exists if the plaintiff's allegations are "purely `speculative[, which is] the ultimate label for injuries too implausible to support standing.'" Tozzi v. Dep't of Health & Human Servs., 271 F.3d 301, 307 (D.C.Cir. 2001) (quoting Advanced Mgmt. Tech., Inc. v. Fed. Aviation Admin., 211 F.3d 633, 637 (D.C.Cir.2000)). Finally, if a plaintiff is an association, it may demonstrate standing as long as "its members would have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires members' participation in the lawsuit." Consumer Fed'n of Am. v. Fed. Commc'ns Comm'n, 348 F.3d 1009, 1011 (D.C.Cir.2003) (quoting Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).
The plaintiffs argue that the evidence they have submitted makes a clear showing that the defendants will promote personnel who belong to certain denominations over others. Pls.' Mot. at 17. According to the plaintiffs, their expert testimony suggests that the defendants are engaging in practices which "result in clear denominational preferences in the award of government benefits, advancing some denominations and inhibiting others to the detriment of Plaintiffs." Id. at 17. They further contend that "[t]he challenged practices are not narrowly tailored to achieve a compelling purpose," and therefore "fail all Establishment Clause tests and result in unequal treatment for all chaplains." Id.
The defendants respond that "[t]here is no empirical evidence that would suggest denominational favoritism or discrimination correlated to the denominational affiliation of chaplain board members." Defs.' Opp'n at 19-20. In support of this argument, the defendants put forth testimony from their own expert which "found serious flaws in [the plaintiffs' expert's] analyses." Id. at 20. They further argue that establishment clause liability cannot "be predicated solely on statistical evidence of disparate impact in favor of or against certain denominations." Id.
Because a preliminary injunction is an "extraordinary and drastic remedy," 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, 598 F.Supp. 36, 37 (D.D.C.1984) (citing Rosemont Enterprises, Inc. v. Random House Inc., 366 F.2d 303, 311 (2d Cir.1966)). If the record presents a number of disputes regarding the inferences that must be drawn from the facts in the record, the court cannot conclude that the plaintiff has demonstrated a substantial likelihood of success on the merits. Suburban Assocs. Inc. v. U.S. Dep't of Housing & Urban Development, 2005 WL 3211563, at *10 (D.D.C.2005); Secs. & Exchange Comm'n v. Falstaff Brewing Corp., 1977 WL 1032, at *18 (D.D.C.1977).
With regard to the irreparable harm prong, this Circuit has "set a high standard" in order for a plaintiff to establish the existence of an irreparable injury. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006). The injury must be both certain and great, and must be actual and not theoretical. Id. In addition, the injury must be beyond remediation. Id. "Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough." Id. (quoting Va. Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958) (internal quotation marks omitted)). The plaintiffs claim that absent the injunction, they will be denied benefits in the form of promotions, continuation of active duty and key assignments. Pl.'s Mot. at 24. These losses, however, constitute the very type of injury that the Circuit has indicated are insufficient to establish irreparable harm. See England, 454 F.3d at 297. The loss of money, time and energy from these benefits comprise the types of injuries that do not fall within the scope of relief of a preliminary injunction.
Furthermore, "[t]he possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm." Id. at 297-98 (quoting FPC, 259 F.2d at 925). The defendants here correctly point out that even if the plaintiffs suffer injury in the form of denied benefits, any such injury may be reparable through the Navy's special selection board procedures to remedy past promotion decisions that were influenced by discrimination. Def.'s Opp'n at 3. This Circuit has noted that "former officers who prevail before the special selection board are entitled to revision of their military record to correct an error or remove an injustice resulting from not being selected for promotion by the initial board." England, 454 F.3d at 298 (internal quotations and citations omitted). Accordingly, the plaintiffs fail to establish that the harms alleged above are irreparable.
The plaintiffs assert that the defendants' challenged practices violate the
The plaintiffs argue that a preliminary injunction would not substantially injure any third parties. Pls.' Mot. at 37-38. In contrast, the defendants argue that the issuance of a preliminary injunction would affect those potential chaplains who are currently entitled to a promotion. Defs.' Opp'n at 38. The defendants further note that scores of military personnel currently rely on a fully staffed chaplaincy corps; these individuals would be harmed by a judicial order that interrupts the flow of military personnel decisions. Id.
Whether or not third parties would be affected by a preliminary injunction is of central importance when deciding whether to issue a preliminary injunction. National Wildlife Federation v. Burford, 835 F.2d 305, 315 (D.C.Cir.1987). A preliminary injunction should only be issued if "[t]hird parties are not subject to its prohibitions." Id. at 316. Here, it appears that two groups of people would be directly or indirectly affected by the injunction the plaintiffs seek. First, the injunction the plaintiffs seek would necessarily halt the promotion of those individuals who are currently scheduled to be promoted. See Defs.' Opp'n at 38. An injunction would prevent those individuals from receiving all the benefits (monetary or otherwise) that accompany the higher rank to which they are presumably entitled. Id.
Second, those military employees who rely upon a properly staffed chaplaincy corps would be indirectly affected by enjoining promotion boards. Should the chaplaincy corps be understaffed, these individuals would not be able to consistently rely on the religious services provided by military chaplains. Defs.' Opp'n at 38. The plaintiffs do not dispute this fact in their briefing. See Pls.' Reply at 24-25.
In sum, the defendants have shown that there is a substantial group of third parties who would be affected — both directly and indirectly — by the judicial injunction
The plaintiffs argue that a preliminary injunction would serve the public interest because such an order would provisionally remedy any potential constitutional violations. Pls.' Mot. at 38. The plaintiffs thus argue that the public would be served by an order requiring the military to comply with the Constitution's First Amendment guarantees. Id. In contrast, the defendants argue that a preliminary injunction would harm the Navy by interrupting its personnel decisions and causing its chaplaincy corps to be understaffed. Defs.' Opp'n at 38. The defendants maintain that a halt in the flow of chaplaincy personnel decisions would cause increased gaps in the ability of chaplains to carry out their mission. Id. In addition, the defendants maintain that the public at large would be harmed by an unwarranted judicial intrusion into military matters. Id.
As the Supreme Court held in Goldman v. Weinberger, "[the judicial] review of military regulations [that are] challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society." 475 U.S. 503, 507, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986). Judicial deference is therefore "at its apogee" when a court is asked to review the constitutional propriety of military affairs. Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981). Similarly, case law counsels extreme caution before second-guessing decisions relating to the military's personnel decisions. Blevins v. Orr, 721 F.2d 1419, 1423 (D.C.Cir.1983) ("It is beyond the expertise, as well as the authority, of the judiciary to second-guess the military with respect to overall manpower needs and promotion policies or to pass judgment on military policy concerns, such as possible congressional antipathy to officer promotion practices."). This is particularly true where, as is the case here, it is unclear that any constitutional violation is imminent. See Bors v. Allen, 607 F.Supp.2d 204, 212 (D.D.C.2009).
The court is acutely aware of the nature and gravity of the constitutional injuries alleged. Nevertheless, the judiciary must defer to military considerations even when the challenges involve First Amendment guarantees protected by the Constitution. Goldman, 475 U.S. at 597-08, 106 S.Ct. 1310. In addition, the public may suffer when the judiciary interferes with the efficient administration of the military. Kosnik v. Peters, 31 F.Supp.2d 151, 158 (D.D.C.1998) ("It would be damaging to shift the decision [as to the composition, training, equipping, and control of a military force] from trained military professionals to a non-specialist judiciary."). Moreover, "interference in military personnel decisions causes great harm to the military because of the potential cumulative effect of multiple injunctions." Bors v. Allen, 607 F.Supp.2d 204, 212 (D.D.C. 2009).
The defendants maintain that a judicially ordered halt in military personnel decisions would hamper the military's ability to carry out its mission. Id. In addition, the defendants maintain that the public would be harmed by an unwarranted judicial intrusion into military matters inasmuch as it would open the door to further intrusions. Id. The plaintiffs offer no evidence with which to rebut the defendant's arguments, opting instead to claim that
In sum, the court concludes that the plaintiffs have not satisfied their burden of showing their entitlement to injunctive relief. The court notes that the evidence put forth by the plaintiffs at best establishes a colorable claim to relief under the Establishment Clause. Absent a clearer showing of the plaintiffs' likelihood of success on the merits, there is no justification for the court to deviate from the ordinary course of adjudication and judicial review. See Am. Bankers Ass'n, 38 F.Supp.2d at 140. Although the plaintiffs' claims might demonstrate an irreparable injury if ultimately vindicated, see England, 454 F.3d at 304, the plaintiffs have failed to demonstrate that an injunction would not substantially injure third parties. In addition, the plaintiffs have failed to show that the public interest would be furthered by the court's intrusion into military personnel decisions. Goldman, 475 U.S. at 507-08, 106 S.Ct. 1310; Weinberger v. Romero-Barcelo, 456 U.S. at 312, 102 S.Ct. 1798 (noting that courts must "pay particular regard for the public consequences in employing the extraordinary remedy of injunction"). Accordingly, the court denies the plaintiffs' motion.
For the foregoing reasons, the court denies the plaintiff's motion for injunctive relief. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 30th day of January, 2012.
