Arnold v. Sec'y of Navy

RICHARD ARNOLD, et al., Plaintiffs, v. SECRETARY OF THE NAVY, et al., Defendants.

Civil No. 19-2755 (JDB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

April 21, 2020

MEMORANDUM OPINION

This action is the latest in a long-running series of cases filed in this Court and elsewhere around the country by a group of Protestant U.S. Navy chaplains against the Navy, alleging that the Navy discriminated against them on the basis of their faith. Previously, as relevant here, three such cases were consolidated before this Court. In 2018 (after more than a decade of litigation), the Court granted summary judgment to the Navy on the bulk of the chaplains' claims.¹ See In re Navy Chaplaincy, 323 F. Supp. 3d 25, 29 (D.D.C. 2018). The chaplains' claims had consisted of both "systemic" claims—broad challenges to various Navy selection board policies and procedures—and "ad hoc" claims—discrete instances of discrimination against individual plaintiffs. The Court's 2018 opinion and accompanying order rejected all the chaplains' systemic claims but left three ad hoc claims standing for future resolution: constructive discharge, retaliation, and interference with the form of prayer. See Nov. 8, 2018 Order ("Severance Order") at 1, In re Navy Chaplaincy, No. 07-mc-269 (D.D.C. 2018), ECF No. 344. That 2018 opinion is currently before the D.C. Circuit on appeal. See In re Navy Chaplaincy, appeal docketed, No. 19-5206 (D.C. Cir. 2019).

Following the Court's summary judgment opinion, the chaplains and the Navy filed a joint motion to sever the remaining ad hoc claims. Joint Mot. for Severance of Claims ("Joint Severance Mot."), In re Navy Chaplaincy, No. 07-mc-269 (D.D.C. 2018), ECF No. 342. Under Federal Rule of Civil Procedure 20(a), plaintiffs may join in a single action if they both (1) assert claims "arising out of the same transaction, occurrence, or series of transactions or occurrences," and (2) those claims involve "any question of law or fact common to all plaintiffs." Fed. R. Civ. P. 20(a). The parties jointly represented to the Court that they did not believe that, "shorn of the systemic claims," the remaining ad hoc claims satisfied either of Rule 20(a)'s prongs. Joint Severance Mot. at 4. The claims did not satisfy the first prong, the parties stated, because they "concern[ed] varying discrete instances of conduct that involve different plaintiffs, different witnesses, different events, in different locations, and at different times," and moreover they would "involve substantially different evidence and would likely involve different defenses," such that "there [was] no reason to believe that consolidating them would promote trial convenience or expedite their resolution." Id. at 3-4. Nor, according to the parties, did the claims satisfy the second Rule 20(a) prong, because they did "not share any common factual or legal nucleus." Id. at 4. Therefore, the parties requested that the Court sever the claims and allow "any Plaintiff who wishes to refile" to do so within a prescribed period; any claims that were not "refiled as separate actions" by the end of that period were to be dismissed with prejudice. Id. at 4-5.

The Court accepted the parties' representations, agreed with their well-reasoned arguments that the ad hoc claims did not satisfy either of the Rule 20(a) prongs, and granted the motion. See Severance Order at 1-2. Accordingly, the Court severed the individual claims and ordered that "any plaintiff . . . who wishes to refile his or her claims for constructive discharge (Count 11), retaliation (Count 12), and/or interference with the form of prayer (Count 9) shall do so, in anyappropriate venue, within ninety (90) days of the issuance of this order, or else his or her claims will be dismissed with prejudice." Id. at 2. The chaplains later moved for an extension of time to refile their severed claims to March 1, 2019, and the Court granted that motion as well. See Jan. 24, 2019 Minute Order, In re Navy Chaplaincy, No. 07-mc-269 (D.D.C. 2019).

On the last day of that filing period, the instant action was filed in the U.S. District Court for the Eastern District of Virginia. The complaint, which once again joins together twenty-seven of the plaintiffs from Navy Chaplaincy, asserts five counts against the Navy: (1) what it calls an "illegal retaliation" claim; (2) a challenge to the constitutionality of 10 U.S.C. § 613a; (3) what it calls a "constructive discharge" claim; (4) a claim that "the Navy has discriminated against non-liturgical chaplains' religious free speech"; and (5) violations of the Religious Freedom Restoration Act ("RFRA"). See Compl. ¶¶ 18-33. Moreover, the complaint states that joinder is now appropriate because "[c]areful analysis of plaintiffs' underlying claims show common themes of retaliation occurring at specific locations, arising from the same or similar sources and common expressions of retaliation and religious hostility." Compl. ¶ 5.

The Navy took issue with the complaint and promptly filed a motion to transfer the case from the Eastern District of Virginia back to this Court. See Defs.' Mot. to Transfer Venue [ECF No. 9] at 1. In the Navy's view, despite dressing them up as "retaliation" and "constructive discharge" claims, the new complaint for the most part actually reasserted the very same systemic claims that this Court had already resolved in its summary judgment opinion; moreover, the Navy argued, the ad hoc claims were improperly joined, contradicting plaintiffs' representations in the joint motion for severance that joinder was inappropriate. See Defs.' Mem. in Supp. of Mot. to Transfer Venue [ECF No. 10] at 1-2. Given the "blatant disregard" for this Court's Severance Order that plaintiffs had shown, the Navy contended that justice would be best served bytransferring plaintiffs' "recycled claims" back to this Court, which is "fully versed in the twists-and-turns" of the case, for resolution. Id. at 2. Judge Morgan agreed, granting the Navy's motion as to twenty-five of the plaintiffs.² See Opinion & Order [ECF No. 26] at 10.

With the case having now been transferred to this Court, the Navy has filed a motion to dismiss, arguing that (1) four of the five counts asserted in the complaint should be dismissed as barred by "res judicata principles," and (2) the Court should sever the claims of the five plaintiffs who improperly joined their otherwise proper ad hoc claims in Count Four and permit refiling of those claims only upon leave of this Court. See Defs.' Mot. to Dismiss Compl. ("MTD") [ECF No. 29] at 1-2. The matter is now fully briefed, and the motion is ripe for decision.

Legal Standard

A motion to dismiss under Rule 12(b)(6) "tests the legal sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To withstand a motion to dismiss, the complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citations omitted). In evaluating the sufficiency of a complaint, the Court considers "the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice." EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Dismissal is appropriate if the plaintiff's claims are defeated by a defense that appears on the face of the complaint. See Smith-Haynie v. District ofColumbia, 155 F.3d 575, 578 (D.C. Cir. 1998) ("[A]n affirmative defense may be raised by pre-answer motion under Rule 12(b) when the facts that give rise to the defense are clear from the face of the complaint."); Nader v. Democratic Nat'l Comm., 590 F. Supp. 2d 164, 169 (D.D.C. 2008) (courts "allow[] parties to assert [res judicata] in a motion to dismiss when 'all relevant facts are shown by the court's own records, of which the court takes notice.'" (quoting Hemphill v. Kimberly-Clark Corp., 530 F. Supp. 2d 108, 111 (D.D.C. 2008))).

Analysis

I. The Retaliation, 10 U.S.C. § 613a, Constructive Discharge, and RFRA Claims

The Court first addresses the Navy's various related arguments that four of the five counts asserted in the chaplains' complaint are merely impermissible repackagings of claims that this Court already resolved in its 2018 opinion in the Navy Chaplaincy case.

A. Res Judicata Principles

In general, res judicata "bars relitigation of claims and issues that were or could have been litigated in a prior action." Alaska Forest Ass'n v. Vilsack, 883 F. Supp. 2d 136, 141 (D.D.C. 2012). "Under well-settled federal law, the pendency of an appeal does not diminish the res judicata effect of a judgment rendered by a federal court." Hunt v. Liberty Lobby, Inc., 707 F.2d 1493, 1497 (D.C. Cir. 1983). Res judicata encompasses two interrelated doctrines: claim preclusion and issue preclusion. See Taylor v. Sturgell, 553 U.S. 880, 892 (2008).

Claim preclusion applies to foreclose "successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit." New Hampshire v. Maine, 532 U.S. 742, 748 (2001). The doctrine therefore "focuses on whether the same cause of action is implicated in both the initial and subsequent lawsuits, meaning the two lawsuits share the same nucleus of facts." Theodore v. District of Columbia, 772 F. Supp. 2d 287, 293 (D.D.C. 2011)(internal quotation marks omitted); id. at 293 (noting that under claim preclusion, parties cannot "mask [their] argument under a new legal theory" where the claims "ultimately rely on the same factual nucleus" (internal quotation marks omitted)). A subsequent claim is barred by claim preclusion "if there has been prior litigation (1)...