Heap v. Carter

112 F.Supp.3d 402

Jason Daniel HEAP, et al., Plaintiffs,

v.Ashton CARTER, et al., Defendants.

No. 1:14cv1490 (JCC/TCB).

United States District Court, E.D. Virginia, Alexandria Division.

Signed July 1, 2015.

Joshua Seth Devore, Cohen Milstein Sellers & Toll PLLC, Christine Elizabeth Tschiderer, Washington Lawyers' Committee, Washington, DC, for Plaintiffs.

Antonia Konkoly, U.S. Attorney's Office, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

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.

I. Background

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 documentation¹ 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,² 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 Defendants³ in violation of the constitutional provisions alleged in Counts Two through Four and Count Six (...