United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERIS, District Judge.
Dr. Jason D. Heap applied to be a chaplain in the U.S. Navy and was rejected. He, along with The Humanist Society, the organization that endorsed him for the chaplaincy, bring this suit against the Department of Defense, the U.S. Navy, and several military officers in their official and individual capacities alleging that the Department of Defense and the Navy have an unconstitutional policy of discrimination against Humanism. This matter is before the Court on the Official Defendants' Motion to Dismiss and for Summary Judgment [Dkt. 42] and on the Individual Defendants' Motion to Dismiss [Dkt. 39]. The Court will grant in part and deny in part the Official Defendants' motion. THS will be dismissed from the case because it lacks standing under any theory it has advanced. The Religious Freedom Restoration Act claims, the constitutional Free Exercise Clause and No Religious Test Clause claims, and the speech and associational claims under the First Amendment will be dismissed. The Official Defendants' motion for summary judgment as to the Establishment Clause and Equal Protection/Substantive Due Process claims will be denied. The Court will grant the Individual Defendants' motion. The Court declines to create a damages remedy under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Even if such a remedy were available, however, the Individual Defendants are entitled to qualified immunity. This Memorandum Opinion memorializes the Court's reasoning.
Dr. Jason Heap ("Dr. Heap") is an Oxford University-educated instructor in history and theology who has spent ten years leading religious services and teaching in the United States and internationally. (Am. Compl. [Dkt. 32] ¶ 2.) He is a Humanist and is certified as a Humanist Celebrant by The Humanist Society ("THS"), a § 501(c)(3) tax-exempt organization qualified as a church under the Internal Revenue Code. ( Id. ) As a Celebrant, Dr. Heap is deemed qualified by THS to lead services, give ceremonial invocations, officiate at funerals and weddings, and perform other ritual functions that are also performed in other religious traditions. ( Id. ) As a Humanist, Dr. Heap does not believe in a god or gods. ( Id. ¶ 3.) Rather, he believes in a system of ethical principles "that are as central and guiding as the moral precepts developed in religious traditions that believe in a god or gods." ( Id. ) After consulting with religious and academic colleagues and mentors, Dr. Heap applied to become a chaplain in the U.S. Navy Chaplain Corps ("Chaplain Corps"). ( Id. ¶ 5.)
Chaplain recruitment is governed by regulations from both the Navy and the Department of Defense ("DoD"). ( Id. ¶ 46 (citing relevant regulations).) The Chaplain Appointment and Retention Eligibility Advisory Group ("CARE Board") reviews applications for the Navy Chaplaincy Corps. ( Id. ) The CARE Board reviews professional qualifications and forwards a recommendation regarding a chaplain applicant to the U.S. Navy Chief of Chaplains. ( Id. ) If the CARE Board certifies the applicant's professional qualifications, the Deputy Chief of Naval Operations, or the Commander, Navy Recruiting Command (acting on behalf of the Deputy Chief), determines whether the applicant is otherwise qualified for a commission as a chaplain. ( Id. ) The Chief of Chaplains approves or disapproves the recommendation by the CARE Board and then forwards it to the Chief of Naval Personnel, who makes the final determination as to whether the applicant is accepted or denied. ( Id. )
An applicant for the chaplaincy must also demonstrate that he or she has received the endorsement of a religious organization by submitting form "DD 2088." ( Id. ¶ 47 (citing Department of Defense Instruction ("DoDI") 1304.28 ¶ 6.1 (2014)).) DoD and Navy instructions create a two-track system for endorsements submitted by endorsing religious organizations. ( Id. ¶ 48.) If the applicant's endorsing organization has previously endorsed an applicant who was accepted into the chaplaincy, the applicant need file only a single form indicating the endorsement of his or her religious organization. ( Id. ) The Armed Forces Chaplain Board ("AFCB") keeps a list of these organizations. ( Id. ) If, however, the Navy has not accepted a chaplain candidate endorsed by the religious organization, the organization must submit additional documentation and obtain the approval of the AFCB. ( Id. ) DoDI 1304.28 requires the AFCB to accept the required documents from an organization seeking recognition as a qualified endorser only when the applicable military department has determined that the candidate was otherwise qualified. ( Id. ¶ 78.)
Dr. Heap contacted Chaplains Program Officer and Navy Chaplain Lt. Joel DeGraeve ("Lt. DeGraeve") in February 2013 to inquire about becoming a chaplain. ( Id. ¶ 67.) After reviewing Dr. Heap's credentials, Lt. DeGraeve told Dr. Heap that his academic record and international experience make him a highly qualified candidate for the Navy chaplaincy. ( Id. ) Lt. DeGraeve encouraged Dr. Heap to apply and said that Lt. DeGraeve's own endorser, the Evangelical Christian Alliance ("Alliance"), would endorse Dr. Heap. ( Id. ¶¶ 67, 68.) Dr. Heap began to apply for an endorsement from the Alliance, but concluded that the Alliance did not accurately reflect his religious views. ( Id. ¶ 69.) Instead, Dr. Heap requested an endorsement from THS. ( Id. )
As part of the application process, Dr. Heap interviewed with U.S. Marine Chaplain (Lt. Commander, Retired) Rabbi Reuben Israel Abraham ("Rabbi Abraham"). ( Id. ¶ 74.) Rabbi Abraham gave Dr. Heap a perfect ranking in his assessment of Dr. Heap's qualifications to serve as chaplain. ( Id. ) Dr. Heap then met with Lt. DeGraeve. ( Id. ¶ 75.) Lt. DeGraeve reiterated that Dr. Heap was highly qualified to serve as a Navy chaplain and that Lt. DeGraeve would attempt to fast track Dr. Heap's application so that he could appear before the CARE Board soon, in either July or August 2013. ( Id. ) As of June 2013, Dr. Heap had submitted all of the paperwork required by the DoD and Navy except for the paperwork identifying his endorsing religious organization. ( Id. ¶ 76.)
The Navy and AFCB learned that Dr. Heap is a Humanist for the first time on July 3, 2013, when the AFCB received administrative paperwork identifying THS as Dr. Heap's endorsing organization. ( Id. ¶ 77.) The AFCB accepted THS's administrative paperwork on July 3, 2013. ( Id. ¶ 79.)
Lt. DeGraeve contacted Dr. Heap in late July 2013 and told him that being endorsed by THS rather than the Alliance could pose a problem for his application. ( Id. ¶ 83.) Soon after Dr. Heap and THS submitted their applications, political pressure mounted on DoD to deny them. ( Id. ¶ 85.) Twenty-one members of Congress submitted a letter to then-Secretary of Defense Charles Hagel, with copies to Secretary of the Navy Ray Mabus and Chief of Navy Chaplains Rear Admiral Mark L. Tidd ("Rear Admiral Tidd"), to express their concern over Dr. Heap's and THS's applications. ( Id. ¶ 85.) Representative John Fleming introduced legislation in the House of Representatives to prevent DoD from accepting Humanist chaplains. ( Id. ¶ 86.) Media outlets reported that an atheist had applied to become a chaplain in the Navy. ( Id. ¶ 87.)
Meanwhile, Dr. Heap continued to check on the status of his application. ( Id. ¶ 88.) Dr. Heap wrote to Lt. DeGraeve on July 12, 2013 to inquire whether his application would be complete before the next CARE Board meeting. ( Id. ) Around the same time, a THS representative contacted Rear Admiral Tidd and offered to discuss Dr. Heap's and THS's applications, which Rear Admiral Tidd declined. ( Id. )
In response to a letter from legal counsel, in a letter dated March 28, 2014, the Navy invited Dr. Heap to appear before the April 8, 2014 CARE Board in Washington, D.C. ( Id. ¶ 95.) Given the short amount of time and extensive travel required,  Dr. Heap nonetheless agreed to appear and did appear at the May 13, 2014 CARE Board. ( Id. ¶¶ 95, 97.)
On May 27, 2014, Lt. DeGraeve contacted Dr. Heap and told him that his application had been denied. ( Id. ¶ 98.) Dr. Heap requested a written denial stating reasons for the decision. ( Id. ) He received a letter explaining that he was denied for the position but without stating any of the reasons. ( Id. )
Heap and THS (collectively "Plaintiffs") argue that Defendants discriminated against Heap and THS because Plaintiffs are Humanists. ( Id. ¶ 198.) Defendants made this determination by applying to Plaintiffs a Navy and DoD policy and practice of not recognizing Humanism as a religion or according it equal treatment to other religions. ( Id. ¶ 198.) Plaintiffs have filed the instant lawsuit, naming several defendants. They allege seven different sources of law in the complaint as grounds for relief: (1) Religious Freedom Restoration Act ("Count One") ( Id. ¶¶ 210-218); (2) Establishment Clause ("Count Two") ( Id. ¶¶ 219-227); (3) Free Exercise Clause ("Count Three") ( Id. ¶¶ 228-234); (4) Equal Protection and Substantive Due Process ("Count Four") ( Id. ¶¶ 235-242); (5) No Religious Test Clause ("Count Five") ( Id. ¶¶ 243-248); (6) subject matter and viewpoint discrimination, prior restraint, and freedom of association under the First Amendment ("Count Six") ( Id. ¶¶ 249-261); and (7) Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, against the Individual Defendants in violation of the constitutional provisions alleged in Counts Two through Four and Count Six ("Count Seven") ( Id. ¶¶ 262-263). Plaintiffs seek a declaratory judgment stating that denying Plaintiffs' applications violated the Plaintiffs' rights under the Religious Freedom Restoration Act, the First and Fifth Amendments, and/or the No Religious Test clause of the Constitution and a declaration that DoDI 1304.28 is unconstitutional under the No Religious Test clause. ( Id. at 82.) Additionally, Plaintiffs seek an order instating Heap as a Navy chaplain and awarding back pay and damages; requiring DoD and the Navy to recognize THS as a qualified ecclesiastical endorser within the meaning of the relevant regulations or alternatively, declaring the Navy and DoD's policy requiring chaplaincy candidates to be endorsed by a religious organization unconstitutional and void; enjoining Defendants from requiring THS to comply with the procedures for first-time ecclesiastical endorsers in DoDI 1304.28; enjoining Defendants from rejecting applications from candidates for the Navy chaplaincy and from organizations seeking to become qualified ecclesiastical endorsers on the basis that the candidates and/or organization are Humanists, or alternatively, declaring that Defendants may not require that applicants for the chaplaincy be adherents of any religion; awarding Dr. Heap equitable relief in the form of back pay; awarding Dr. Heap monetary relief in the form of lost wages and other compensatory damages; and awarding Plaintiffs reasonable costs and expenses. ( Id. at 83-84.)
All Defendants have moved to dismiss. The Official Defendants move to dismiss all counts except Counts Two (Establishment Clause) and Four (Equal Protection and Substantive Due Process), for which they move for summary judgment. ( See generally Official Defs.' Mem. in Supp. [Dkt. 43].) The Individual Defendants move to dismiss Counts One and Seven, the only counts asserted against them. ( See generally Individual Defs.' Mem. in Supp. [Dkt. 40].) Having been fully briefed and argued, this motion is ripe for disposition.
II. Legal Standard
A. Motion to Dismiss
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint[.]" Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted). The Supreme Court has stated that in order "[t]o survive a motion to dismiss, a [c]omplaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Id. The issue in resolving such a motion is not whether the non-movant will ultimately prevail, but whether the non-movant is entitled to offer evidence to support his or her claims.
Moreover, the plaintiff does not have to show a likelihood of success on the merits. Rather, the complaint must merely allege - directly or indirectly - each element of a "viable legal theory." Twombly, 550 U.S. at 562-63.
B. Summary Judgment
Summary judgment is appropriate only where, on the basis of undisputed material facts, the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial burden of "informing the district court of the basis for its motion, " and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. See Ray Commc'ns, Inc. v. Clear Channel Commc'ns, Inc., 673 F.3d 294, 299 (4th Cir. 2012) (stating the opposing party must "come forward with specific facts showing that there is a genuine issue for trial.").
In reviewing the record on summary judgment, the Court "must draw any inferences in the light most favorable to the non-movant" and "determine whether the record taken as a whole could lead a reasonable trier of fact to find for the non-movant." Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1259 (4th Cir. 1991) (citations omitted). "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
1. Justiciability of Dr. Heap's Claims
The Official Defendants argue Dr. Heap's claims must be dismissed because he seeks relief in this action that is beyond the authority of the judiciary to grant, namely, a judicial declaration that Heap is "qualitatively superior to other candidates selected for accession" and an order directing Defendants to commission Heap as an officer in the Navy Chaplain Corps. (Official Defs.' Mem. in Supp. [Dkt. 43] at 15.) Dr. Heap argues that religious discrimination is not entrusted to the political branches. (Pls.' Opp'n [Dkt. 61] at 11.) Additionally, he argues that even if one measure of requested relief fails, his entire complaint does not fail because he seeks other remedies that are squarely within the Court's power to order. ( Id. at 14-15.)
Federal courts are courts of limited jurisdiction and possess only that power authorized to them by the United States Constitution and by federal statute. Article III of the Constitution limits the jurisdiction of federal courts to "cases and controversies." This requirement serves two purposes: conserving judicial resources to cases "presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process" and "assur[ing] that the federal courts will not intrude into areas committed to the other branches of government." Flast v. Cohen, 392 U.S. 83, 95 (1968). This "dual limitation" is known as justiciability. Id. The scope of justiciability "is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have held not to be justiciable." Id. A case is non-justiciable when the parties seek only adjudication of a political question, when the parties are asking for an advisory opinion, when the case has been mooted by subsequent developments, and when a party has no standing to maintain the action. Id.
The Official Defendants argue Heap's claims are non-justiciable because the relief they seek would require this Court to intrude into matters committed to the executive and legislative branches. (Official Defs.' Mem. in Supp. at 16.) The Constitution vests authority in the President, with the advice and consent of the Senate, to determine whom to commission as a Navy officer. See U.S. Const. art II, § 2, cl. 2; see also 10 U.S.C. § 531(a)(1) (providing that the President may appoint Navy officers in grades up to and including that of lieutenant without the advice and consent of the Senate).
It is clear that this Court lacks power to order Dr. Heap's instatement as a Navy chaplain. U.S. Const. art. II, § 2, cl. 2; Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989) (stating plaintiff's demand for appointment as an officer is "squarely within the realm of nonjusticiable military personnel decisions"). However, this does not mean that Dr. Heap's suit fails.
First, while this Court has "no quarrel... that the operation of the military is vested in Congress and the Executive, and that it is not for the courts to establish the composition of the armed forces, " that does not mean that this Court lacks jurisdiction to decide constitutional questions that arise out of military decisions about establishing the armed forces. Emory v. Sec'y of Navy, 819 F.2d 291, 294 (D.C. Cir. 1987). "Where it is alleged, as here, that the Armed Forces have trenched upon constitutionally guaranteed rights through the promotion and selection process, the courts are not powerless to act. The military has not been excepted from constitutional provisions that protect the rights of individuals." Id. (citing Parker v. Levy, 417 U.S. 733 (1974)).
In fact, "it is precisely the role of courts to determine whether those rights have been violated." Id. (citation omitted) (reversing district court's dismissal for lack of subject matter jurisdiction in case where plaintiff alleged he was not promoted to rear admiral because of racial discrimination); see also Chappell v. Wallace, 462 U.S. 296, 301 (1983) ("This Court has never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service."); Wigginton v. Centracchio, 205 F.3d 504, 512 (1st Cir. 2000) ("The second, and controlling reason is that, taken together Chappell and [ United States v. ] Stanley ... make it clear that intramilitary suits alleging constitutional violations but not seeking damages are justiciable."); Dillard v. Brown, 652 F.2d 316, 320 (3d Cir. 1981) ("Yet these sections of the Constitution [art. II, § 2 and art. I, § 8] do not provide or intimate that, when statutes or regulations regarding the composition of the military trench upon other constitutional guarantees, the courts are powerless to act."); cf. Kreis, 866 F.2d at 1511 (stating plaintiff's non-constitutional challenge to military assignment and lack of promotion non-justiciable). Here, Heap claims that he has been improperly discriminated against because of his religious beliefs. Determining whether his constitutional rights have been violated in the process is clearly within this Court's competence and jurisdiction.
Second, Dr. Heap's action does not fail because the Court is powerless to order one of his requested remedies: instatement as a Navy chaplain. "Although Rule 8(a)(3) of the civil rules requires that a complaint contain a demand for judgment for the relief the pleader seeks, ' the demand is not itself part of the plaintiff's claim." Bontokowski v. Smith, 305 F.3d 757, 762 (7th Cir. 2002) (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1255 (2d ed. 1990)). Therefore, failure to specify relief to which the plaintiff is entitled does not warrant dismissal for failing to state a claim. Id. This conclusion is supported by Federal Rule of Civil Procedure 54(c), which states "[e]very other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings. " (emphasis added); see Bontkowski, 305 F.3d at 762 (collecting cases); Charles v. Front Royal Vol. Fire & Rescue Dep't, Inc., 21 F.Supp. 3d 620, 629 (W.D. Va. 2014) ("[T]he selection of an improper remedy in the demand for relief will not be fatal to a party's pleading if the statement of the claim indicates the pleader may be entitled to relief of some other type.").
Here, Dr. Heap has requested several forms of relief, including a declaratory judgment that the rejection of his application violated his rights under the Religious Freedom Restoration Act and the First and Fifth Amendments, and/or the No Religious Test Clause of the Constitution, as well as a declaration that DoDI 1304.28 is unconstitutional as violative of the No Religious Test Clause. (Am. Compl. at 82.) The Official Defendants argue that declaratory relief would not be an appropriate resolution of this case because it would not have any effect on their behavior toward Dr. Heap, thus amounting to nothing more than an advisory opinion. They cite to Dynaquest Corp. v. U.S. Postal Service, 242 F.3d 1070 (D.C. Cir. 2001) in support. (Official Defs.' Mem. in Supp. at 15 n.8.) Dynaquest is inapposite here. In Dynaquest, the D.C. Circuit rejected the plaintiff's challenge to the decision of the Postal Service Administrative Judicial Officer ("AJO") on grounds that the AJOs are appointed in violation of the Appointments Clause of the United States. Dynaquest, 242 F.3d at 1076. The court declined to reach the merits of the Appointments Clause challenge because "[n]o AJO, regardless of the validity of his appointment, would have authority to decide the issue otherwise." Id. Thus, resolving the Appointments Clause issue in favor of the plaintiff could not bring the plaintiff any relief and would be an advisory opinion. Id. Here, resolving the issue of whether Dr. Heap was rejected from the Navy Chaplain Corps would change the criteria used to evaluate Dr. Heap's application if he were to reapply - namely, that the Navy cannot bar him from the Chaplain Corps on the basis of his affiliation with Humanism. Accordingly, Dr. Heap's claims are justiciable, and the Official Defendants' motion will be denied as to this ground.
2. THS's Standing
An organizational plaintiff may establish standing to bring suit either on its own behalf or on behalf of its members. White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir. 2005). "A justiciable case or controversy requires a plaintiff [who] has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Planned Parenthood of S.C. v. Rose, 361 F.3d 786, 789 (4th Cir. 2004) (citations and internal quotation marks omitted). Individual as well as organizational plaintiffs must satisfy this requirement. White Tail Park, 413 F.3d at 458. Both the Official Defendants and Individual Defendants challenge whether THS has standing to bring claims on its own behalf as well as claims on behalf of Humanist Navy Service Members. (Official Defs.' Mem. in Supp. at 18-28.) The Court addresses each in turn.
a. THS's Standing to Bring Claims on its Own Behalf
An organizational plaintiff may establish standing to bring suit on its own behalf when it seeks redress for a distinct injury suffered by the organization itself. White Tail Park, 413 F.3d at 458. Like an individual plaintiff, an organizational plaintiff must provide evidence to support the conclusion that:
(1) "the plaintiff... suffered an injury in fact - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical"; (2) "there [is] a causal connection between the injury and the conduct complained of"; and (3) "it [is] likely, as opposed ...