Heap v. Carter (112 F. Supp. 3d 402, 2015)

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).) Thé 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. (M) '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 De-Gf aeve (“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. Dé-Graeve encouraged Dr. Heap to apply and said that Lt. DeGraeye’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. De-Graeve. (Id. ¶ 75.) Lt. DeGraeve reiterated that Dr. Heap was highly qualified to serve- as a Navyi 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. Heáp 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 arid'practice of not recognizing Humanism -as a religion or according it equal treatment to other religions. (Id. ¶ 198.) Plaintiffs have filed the iristant 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 Sqven”) (Id. ¶¶ 262-263). Plaintiffs seek a declaratory judgment stating that denying Plaintiffs’ applications violated the Plaintiffs’ rights under the Religious Freedqm 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 or-gariization 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) ahd Four (Equal Protection and Substantive Due Process), for which they move for summary judgment. {See generally Official Dfefs.’ 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liablfe for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. 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, 127 S.Ct. 1955.

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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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^] the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Analysis

A. Jurisdiction

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 Héap 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 au 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, 88 S.Ct. 1942, 20 L.Ed.2d 947 (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’plaintiffs demand for appointment ,as an officer is “squarely within the realm of nonjusticia-ble 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, 94 S.Ct. 2547, 41 L.Ed.2d 439 (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, 103 S.Ct. 2362, 76 L.Ed.2d 586 (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 intramili-tary suits alleging constitutional violations but not seeking damages áre 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 plaintiffs 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 plaintiffs claim.” Bontkowski 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 Dyna-quest, the D.C. Circuit rejected the plaintiffs-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, ail 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) actuator imminent, not conjectural or hypothetical”; (2) “there [is] a' causal connection between the injury and the conduct complained óf”; and (3) “it [is] likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”

Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

Defendants argue.THS lacks standing because it has failed to demonstrate it suffered a cognizable injury. (Official Defs.’ Mem. in Supp. at 19.) Defendants maintain that because Heap- was deemed not qualified ,by the CARE Board, the AFCB never had an opportunity to consider THS’s application to be an endorsing organization. (Id. at 19-20.) THS alleges three possible injuries. First, THS-alleges that the AFCB’s acceptance of its application on July 3, 2013 before Dr. Heap appeared before the CARE Board violated DoD policy. Second, THS alleges that it failed to obtain recognition as a qualified endorser because Defendants denied Dr. Heap, its candidate, who in turn was denied because he was endorsed by THS. (Pls.’ Opp’n at 16.) Stated differently, THS alleges it failed to obtain .recognition as a qualified endorser because the Navy discriminated against Dr. Heap, thereby establishing a direct injury against it. (Id.) Finally, .THS alleges that it suffered injury from the administrative burden of submitting its application to the AFCB and bringing this lawsuit. (Id. at 20.)

Since THS has never successfully endorsed a candidate for the chaplaincy, it must submit additional documentation and obtain the approval of the AFCB to become a recognized endorser. (Am. Compl. ¶ 49.) DoDI 1304.28 requires the AFCB to accept the required documents from a first-time ecclesiastical. endorser “only when the applicable Military Department” has determined that the chaplain candidate is otherwise qualified. (Am. Compl. ¶ 78 (citing DoDI 1304.28 ¶6.1.1.3.).) The AFCB shall notify the Military Departments of religious organizations that have filed the prerequisite documents and whose packets have been found administratively complete. (DoDI 1304.28 ¶ 6.11.3.) The' Military Departments may evaluate chaplain candidates from religious organizations that are submitting the ád-ministrative filing requirements for the first time and are pending determination of whether their prospective chaplain is fully qualified. (Id. ¶ 6.11.4.) The Military Departments shall consult with the AFCB to determine if the administrative requirements are pending acceptance in such cases. (Id.)

THS specifically alleges that it was a violation of DoDI 1304.28 for the AFCB to accept THS’s “administrative paperwork before the Navy made any determination as to Dr. Heap’s candidacy.” (Am. Compl. ¶ 79.) According to the policy, the AFCB may ensure that a first-time endorser’s application is administratively complete and relay that information to the appropriate Military Department. As alleged here, the AFCB did just that — it accepted THS’s administrative paperwork. There was nothing improper, per the terms of the policy, for the AFCB to make sure that THS’s application was complete before the CARE Board had determined whether Dr. Heap was qualified to be a chaplain. Therefore, THS cannot allege injury based on the administrative acceptance of its paperwork.

Likewise, THS cannot allege injury based on the denial of Dr. Heap’s application. Since the CARE Board never determined that Dr. Heap was qualified, the AFCB never made a decision on THS’s application beyond stating that it was complete. Imputing Dr. Heap’s injury to THS is not the kind of concrete injury caused by a defendant’s actions that is required by constitutional and prudential considerations.

THS contends it has suffered injury- under Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). THS argues that Havens stands for the proposition that an organization has standing where it “devote[s] significant resources to identifying and counteracting the defendant’s discriminatory practice.” (Pls.’s Opp’n at 20.) In Havens, plaintiff, a fair housing non-profit, had alleged that its organizational purpose hid been “frustrated by defendants’ racial steering practices in. its efforts to assist equal access to housing through counseling and other referral services. [It] ... had to devote significant resources to identify and counteract the defendant’s racially discriminatory steering practices.” Id. However, the issue in Havens was “the scope of standing to sue under the Fair Housing Act of 1968.” Id. at 366, 102 S.Ct. 1114. The complaint identified plaintiff as “a nonprofit corporation organized under the laws of the State of Virginia whose purpose was to make equal opportunity in housing a reality in the Richmond Metropolitan Area.” Id. at 368, 102 S.Ct. 1114. Thus, assuming'the steering practices had impacted plaintiffs ability to provide counseling-and referral services for'low — and moderate income residents, the Court found that there “can be no question” that plaintiff suffered injury in fact. Id. at 379, 102 S.Ct. 1114. It was more than “simply a setback to the organization’s abstract social interests” given the plaintiffs organizational mission. Id.; cf. Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (“But a mere interest in a problem, no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization ‘adversely affected’ or ‘aggrieved’ within the meaning of the APA.”).

THS alleges that, it will have to submit documentation affirming that it satisfies the administrative requirements necessary to be a qualified religious organization in order to endorse another chaplain candidate in the future. (Pls.’ Opp’n at 20 (citing Am. Compl. ¶ 200).) THS further alleges that this procedural requirement will frustrate its organizational mission by impeding its ability to provide Humanist Celebrants to Navy service members. (Id. (citing Am. Compl. ¶ 201).) Defendants argue these justifications fail to establish standing because (1) the alleged harm is based on speculation that THS will attempt to endorse a chaplain candidate in the future; (2) the procedural requirement that - THS submit certain administrative documentation to endorse a candidate in the future will not frustrate THS’s organizational mission; and (3) the alleged frustration of an organizational mission by itself is too abstract of a purported injury to establish standing. (Official Defs.’ Mem. in Supp. at 20-23.)

“[A]n injury to organizational purpose, without more, does not provide a basis for standing.” S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. Open-Band at Broadlands, LLC, 713 F.3d 175, 183 (4th Cir.2013) (citing Sierra Club and distinguishing Havens as finding organizational injury where “broadly alleged” impairment of an organization’s ability to advance its purposes combined with an alleged “consequent drain on the organization’s resources.”). Merely alleging that THS has been injured because denying Dr. Heap hurts its mission to “prepare Hu manist Celebrants to lead ceremonial observances ... [and] strengthen Humanist communities” is not enough to create an injury here. To be sure, reapplying to be an, endorsing organization and bringing this lawsuit are costly, but, such costs do not cut to -the core of the organization’s mission like in Haveyis. See Nat’l Treasury Bmps. Union v. United States, 101 F.3d 1423, 1430 (D.C.Cir.l996), (“If a defendant’s conduct does not conflict directly with an -organization’s stated goals, it is entirely speculative whether the defendant’s conduct is impeding the organization’s activities. Moreover, in those cases where governmental action is challenged, if the government’s conduct does not directly conflict with the organization’s mission, the alleged injury to the organization -likely will be one that is shared by a large class of citizens and thus insufficient to establish injury in fact.”). Furthermore," as the Navy points out, requiring THS to submit administrative documentation for the next Humanist Navy chaplain applicant will not so frustrate THS’s organizational mission such that injury is established in this suit. (Official Defs.’ Mem. in Supp. at 21.) Accordingly, THS does not have standing to bring claims on its own behalf.

b. THS’s Associational Standing

The standing analysis does not end with consideration of whether THS has organizational standing. An organizational plaintiff may also have standing to bring claims on behalf of its members. Known as associational standing, the entity must demonstrate that “(1) its members would otherwise have standing to sue as individuals; (2) the interests at stake are germane to the group’s purpose; and (3) neither the claim made nor the relief requested requires the participation of . individual members in the suit.” White Tail Park, 413 F.3d at 458. If a single member of the organization has standing to bring the suit, then so, too, does the organization. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 155 (4th Cir.2000).

Defendants argue that THS does not have standing to bring claims on behalf of Humanist service members in the Navy who do not have access to a Humanist Navy chaplain. (Official Defs.’ Mem. in Supp. at 23.) First, it argues that THS is not a traditional membership organization nor does it qualify as a functional equivalent of one, stating instead that THS is simply an accreditation organization. (Id. at 23-24.) Second, even if this Court determined that THS is a functional equivalent of a membership organization, THS’s members are Humanist Celebrants, not Humanist congregants. Therefore, THS cannot raise the claims on behalf of Humanist congregants. (Id. at 24-25.) Third, THS cannot show that the service member THS identifies as. harmed by the Navy’s policy, Chief Electronics Technician Douglas Wright (“Wright”), has standing to challenge the lack of a Humanist chaplain in the Navy because a favorable judicial decision will not remedy Wright’s lack of access to such a chaplain. (Id. at 25.) THS denies all of Defendants’ assertions. (Pls.’ Opp’n at 22-24.)

The Court turns first to Defendants’ contention that THS is not a membership organization or a functional equivalent. “[A]n organization with no formal members can still have associational standing if it is the functional equivalent of a traditional membership organization.” Washington Legal Found. v. Leavitt, 477 F.Supp.2d 202, 208 (D.D.C.2007) (citation and internal quotation marks omitted), Functional equivalency is determined if the organization (1) serves a specialized segment of the community; (2) represents individuals that have all the indicia of membership, including (i) electing the entity’s leadership, (ii) serving in the entity, and (iii) financing The entity’s activities, and (3) its fortunes are tied closely to those of its constituency. Id.; see also Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 344-45, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) (stating that commission had all indicia of traditional membership organizations);

In the Amended Complaint, THS alleges that “it maintains an active membership, including members who are enlisted in the United States Navy.” (Am. Compl. ¶ 17.) Elsewhere in the Amended Complaint, THS describes itself as preparing Humanist Celebrants to provide ministry through an accreditation process. (Am. Compl. ¶¶ 142-144, 204.) Beyond these two allegations, THS has provided no details about who the membership is or whether THS truly can be considered a .voluntary membership organization or a functional equivalent. This makes it difficult to determine whether it is, in fact, an organization capable of asserting associational. standing or whether one of its members has standing to assert the claims at issue here. THS has not alleged any information that would allow the Court to find that it has the kind of leadership and financial structure that is closely tied to that of its members or that its members exert any control over the direction of the organization. Therefore, THS does not have associational standing.

c. Whether THS May Assert Third Party Standing

Additionally, THS argues it has third party standing to sue on behalf of Humanists in the Navy who 'are not THS members. (Pls. Opp’n at 23-24.) “Federal courts must hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of the rights of third persons not parties to the litigation.” Singleton v. Wulff, 428 U.S. 106, 113, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). Thus, the general rule is “ordinarily, one may not claim standing ... to vindicate the constitutional rights of some third party.” Id. at 113-14, 96 S.Ct. 2868 (citation and internal quotation marks omitted). The reasons for this rule are twofold: it avoids unnecessary litigation, and it is presumed that the holders of the rights at issue usually will be the best proponents of their own rights. Id. at 113-14, 96 S.Ct. 2868.

There are two recognized exceptions to the rule against third party standing. First, if the relationship between the litigant and the person whose right he seeks to, assert is close, courts will often, allow the litigant .to.proceed with the suit. Id. (“Furthermore, the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective -a proponent of the right as the latter.”) (citing Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (holding that a licensed physician had standing to assert the privacy rights of the married persons he advised)). Second, courts look to whether the third party can assert his own right. “If there is some genuine obstacle to such assertion, however, the third party’s absence from court loses its tendency that his right is not truly at stake, -or truly important to him, and the party who is in court becomes by default the right’s best -available proponent.” Singleton, 428 U.S. at 116, 96 S.Ct. 2868 (citing NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). (holding NAACP; in resisting a court order that it divulge the names of its members, could assert the First and Fourteenth Amendments rights of those members to remain anonymous)).

Here, THS argues that Humanist service members “ ‘enjoyment of the right’ to religious accommodation by Humanist chaplains ‘is inextricably bound up with the activity [THS] wishes to pursue,’ namely, endorsing Humanist chaplains to serve in the Navy.” (Pls.’ Opp’n at 24.) However, neither exception to the rule against third party standing applies to allow THS to bring claims oh behalf óf Humanist service members who are not members of THS. First, THS and the service members it names — Petty Offier Todd Kregel (“Kregel”) and Commander Antonio McCabe (“McCabe”) do not enjoy the kind' of close relationship like plaintiffs cited in Singleton who were allowed to bring claims on behalf of third parties. THS and McCabe and Kregel do not enjoy a confidential relationship like that of doctor and patient. See Singleton, 428 U.S. at 115, 96 S.Ct. 2868 (citing cases). Nor could THS be considered an advocate for McCabe and Kregel, as, by THS’s own admission, they are not even members of THS. See Singleton, 428 U.S. at. 115, 96 S.Ct. 2868 (citing Eisenstadt v. Baird, 405 U.S. 438, 445-46, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), as stressing the advocate relationship and impact of the litigation on the third party interests); Second, THS argues that McCabe and Kregel may be chilled from asserting their rights by the publicity of a court suit and thus might not bring their own lawsuits for fear of retaliation, negative publicity, or hostile treatment from fellow officers and superiors. (Pls.’ Opp’n at 24.) However, both are publicly named in this suit. Thus, the Court is not,convinced that there are significant obstacles preventing McCabe and Kregel from bringing their own lawsuits challenging the' lack of Humanist chaplains in the Navy. Accqrdingly, THS does not have standing to assert the rights of third parties.

Ultimately, the Court finds that THS does not have standing under any of the aforementioned theories. Accordingly, the Court will grant Defendants’ motion in this regard.

3. Whether THS’s Claims áre Ripe

Defendants challenge whether THS’s claims are ripe. (Official Defs.’ Mem. in Supp. at 25.) Ripeness is a subset of justiciability and is drawn from Article Ill’s limitations on judicial power and prudential reasons for declining to exercise jurisdiction. See Miller v. Brown, 462 F.3d 312, 319 (4th Cir.2006) (citation omitted) (noting that analyzing ripeness is similar to determining whether a party has standing). Claims are ripe when “the issue is substantively definitive enough to be fit for judicial decision and whether hardship will result from withholding court consideration.” Bryant Woods Inn, Inc. v. Howard Cnty., Md., 124 F.3d 597, 602 (4th Cir.1997); see also Miller, 462 F.3d at 318-19 (citation and internal quotation marks omitted) (“The doctrine of ripeness prevents judicial consideration of issues until a controversy is presented in clean-cut and concrete form.”). Its purpose is to prevent premature adjudication of issues not yet ready for- review. To determine whether a case is ripe, courts balance “the fitness of the issues for judicial decision with the hardship to the parties of withholding court consideration.” Miller, 462 F.3d at 319 (citation and internal quotation marks omitted). “A case is fit for judicial decision when the issues are purely legal and when the action in controversy is final and not dependent on future uncertainties.” Id. (citation and internal quotation marks omitted). The burden of proving ripeness falls on the party bringing suit. Id. (citing Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991)).

THS claims that the AFCB discriminated against THS by allegedly refusing to recognize THS as a qualified endorser because of its Humanist beliefs. (Am. Compl. ¶ 198.) Defendants argue that the AFCB never considered THS’s application to become a qualified endorser because Dr. Heap’s application was denied and thus no action was taken on its application. (Official Defs.’ Mem. in Supp. at 27.) As noted earlier, the AFCB administratively accepted THS’s application. However, nowhere in the complaint is it alleged that the AFCB undertook a merits review of THS’s application. According to DoDI 1304.28, such a review could not occur until Dr. Héap had been deemed qualified by the Navy. Since the Navy rejected. Dr. Heap’s application, the AFCB never had occasion to consider whether THS is a qualified ecclesiastical, endorser. Therefore, THS’s claim is not ripe. See Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (stating ripeness “protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.”). . .

To summarize, THS does not have organizational standing to bring claims on its own behalf because it has not shown sufficient injury. Even if the Court were to find such organizational standing, THS’s claim still fails on these facts because its claim is not ripe, as the AFCB never, adjudicated the merits of its ecclesiastical endorser application.

THS also lacks associational standing. It has not shown.that it is a membership organization or functional equivalent. Finally, THS lacks third party standing to bring claims on behalf of non-members. Accordingly, THS will be dismissed from this lawsuit.

B. Deficiency of Claims

Defendants challenge whether several of Dr. Heap’s claims are legally sufficient. The Court addresses each in turn.

1. Religious Freedom Restoration Act

The Religious Freedom Restoration Act (“RFRA”) prohibits “Government from substantially burdening a person’s exercise of religion, .even if that, burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)-(b). Thus, RFRA allows courts to strike down neutral laws of general applicability when they are a substantial burden to religious exercise and the government cannot meet its burden to show a compelling interest achieved by the least restrictive means. Here, Defendants challenge whether Dr. Heap’s free exercise rights under RFRA'have been substantially burdened when the Navy denied Heap’s application to the Navy chaplaincy. (Official Defs.’ Mem. in Supp. at 29.)

A substantial burden requires “‘substantial pressure on an-adherent to modify his behavior and to violate his-beliefs.’” Liberty Univ., Inc. v. Lew, 733 F.3d 72, 99-100 (4th Cir.2013) (citing Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981)). Under RFRA Dr. Heap bears the burden of proving that the Navy’s policy implicates his religious exercise. See Holt v. Hobbs, - U.S. -, 135 S.Ct. 853, 862, 190 L.Ed.2d 747 (2015). In Holt, the Supreme Court held'that a prison regulation that prevented a prisoner form growing a beard in accordance with his Muslim faith burdened his free exercise rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Id. at 862. And in Burwell v. Hobby Lobby Stores, Inc., the Supreme Court held that regulations promulgated under the Patient Protection and Affordable Care Act substantially burdened the religious exercise of three closely-held corporations by mandating that they provide health insurance coverage for contraception, which violated their sincerely held religious beliefs against contraception and abortion. - U.S. -, 134 S.Ct. 2751, 2759, 189 L.Ed.2d 675 (2014).

Here, Dr. Heap has not shown that becoming' a Humanist Navy chaplain is dictated by the tenets of Humanism or that by not becoming a Navy chaplain he is somehow in violation of the tenets of Humanism. Rejecting Heap from the Navy chaplaincy does not put substantial pressure on Dr. Heap to modify his behavior ’and violate his beliefs. Therefore, there has been nd substantial burden of Dr. Heap’s religious exercise.

Dr. Heap’s argument appears to be "premised on the belief that Dr. Heap could become a chaplain only if he affiliated with an AFCB-approved . religion, (See Am. Compl. ¶ 213.) Though the Court must construe, the. allegations in.-the complaint as true in ruling on .a motion to dismiss, this assertion strikes the- Court as wholly speculative, even assuming that the Navy intentionally discriminated against Dr. Heap. If Dr. Heap did claim to be affiliated with an already established AFCB-ap-proved -religion, it is possible the Navy would still reject his application because he did not meet other criteria.

While serving as a Navy chaplain is no doubt important to Dr. Heap, Dr. Heap has not. demonstrated that being a Navy chaplain is part of the core belief system of Humanism. . (See Am. Compl. ¶¶ 129-161.) Accordingly, Dr. Heap’s RFRA claim will be dismissed.

2. Free Exercise Claim

The Free Exercise Clause provides that “Congress shall make no law ... prohibiting the free exercise” of religion. U.S. Const. amend. I. However, the Clause does not compel Congress-to exempt religious practices from a “valid and neutral law of general applicability.” Emp’t Div., Dep’t of Human Res., Or. v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (internal quotation marks omitted). This is so even if such a law “has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). “A neutral law of general applicability thus does not violate the Free Exercise Clause.” Liberty University, 733 F.3d at 99.

Dr. Heap conceded that his free exercise claim does not challenge the regulations promulgated by the Navy as facially discriminatory. (Pls.’ Opp’n at 40 n. 23.) Nor has Dr. Heap alleged that though the -regulations are facially neutral, they were enacted with the specific purpose of excluding Humanists from thé Navy chaplaincy. Id.; see Church of the Lukumi, Babalu Aye, 508 U.S. at 540, 113 S.Ct. 2217. Dr. Heap’s claim that there ,was a policy of discrimination against Humanists in the Navy chaplaincy is therefore not cognizable under the Free. Exercise Clause, and accordingly this claim will be dismissed.

3. First Amendment Claim

Official Defendants argue Dr. Heap’s freedom of expression claims fail because Defendants have , not acted in any way to restrict Dr. Heap’s expression and chaplain candidates have no right to be provided with a platform to express their Humanist views as Navy chaplains. (Official Defs.’ Mem. in Supp. at 32.) Dr. Heap argues the Armed Forces chaplaincy programs, including the Navy, are a forum designated for religious exercise and expression. (Pls.’ Opp’n at 48.) Excluding Dr. Heap from the chaplaincy because he is a Humanist, therefore, amounts to denying Dr. Heap access to a designated public forum because of the viewpoint of his speech in violation of the First Amendment. (Id. at 48-51.)

The Navy Chaplain Corps is comprised of “commissioned Naval officers who possess specialized education, training, and experience to meet the spiritual needs of those who serve in the Navy and their families.” Adair v. England, 183 F.Supp.2d 31, 35 (D.D.C.2002) (citation and internal. quotation marks omitted). The purposes of the Navy chaplaincy include “caring for all service members, facilitating. the; religious requirements of personnel of all faiths, [and] providing religious organization-specific ministries[.]” (Am. Compl. ¶ 252); see also Katcoff v. Marsh, 755 F.2d 223, 226 (2d Cir.1985) (“The primary function of the military chaplain, is to engage in activities designed to meet the. needs of a pluralistic military society.”). The Navy Chaplain Corps was created by statute as “a staff corps of the Navy.” 10 U.S.C. § 5142. Thus, the appropriate conceptualization of the Navy Chaplain Corps is not as a “forum”, a place where speech may occur on goyernment property, see Christian Legal Society v. Martinez, 561 U.S. 661, 669 n. 11, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010), but rather as a position for employment with the U.S. government. On this view, Dr. Heap has no constitutionally-protected right to be hired to engage in specific kinds of speech or associative activity. Therefore, Plaintiffs’ freedom of expression claim must fail.'

The parties dispute whether Gar-cetti v. Ceballos applies to this case. In Garcetti, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Defendants argue that since the speech of a current employee is not protected by the First Amendment when the speech owes its existence to the employee’s official duties, it follows that an applicant for employment does not have freedoms of speech or' association rights to be hired tó engage ini the speech of his choice. (Official Defs.’ Mem. in Supp. at 34.) Dr. Heap argues that the Fourth Circuit has held that Garcetti does not apply to speech that is a special concern of the First Amendment, even when it is part of the speaker’s official duties to speak on the subject. See Adams v. Trustees of the Univ. of N.C.-Wilmington, 640 F.3d 550, 563-64 (4th Cir.2011) (noting that Garcetti left open the question of whether it applied to teaching and scholarship and declining to apply Garcetti in a case involving a professor’s challenge to denial of tenure). Where, as here, the speech concerns a core First Amendment concern — the free exercise of religion — Dr. Heap argues Garcetti should not apply. (Pls.’ Opp’n at 49-50 (citing Brown v. Polk Cnty., Iowa, 61 F.3d 650, 658 (8th Cir.1995) (en banc) (holding that religious speech of county employee was at the core of the First Amendment and therefore county employee had a right to speak on the topic without reprisal from employer under Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968))).)

Assuming (as both parties do) that a job candidate for public employment is properly considered an employee for First Amendment purposes, Garcetti applies here. As Official Defendants note, chaplains speak on religious matters only as part of their official military duties. It is impossible to separate a chaplain’s official duties from speech on religion, and adopting a rule that would remove religious speech of Navy chaplains from the Navy’s control would eviscerate Garcetti. Accordingly, Dr. Heap has no First Amendment protections as an applicant for the chaplaincy.

To the extent that Dr.. Heap’s claim is that he was retaliated against because of his speech, the claim still fails. While Dr. Heap has shown that he engaged in a protected activity, speech, and that he suffered adverse action from Defendants, namely, the denial of his application, he cannot show a causal link between the two. See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.2010). Stated differently, Dr. Heap cannot point to any particular speech or conduct that was the impetus for denying Dr. Heap’s application. Therefore, Dr. Heap has not sufficiently stated a speech retaliation claim.

The Court also rejects Dr. Heap’s contention that denying Dr. Heap access to the Chaplain Corps operates as a prior restraint. First, as a practical matter, accepting such an argument could mean that every disappointed applicant for a federal, state, or local job could argue that the refusal to hire suppressed the applicant’s future speech as an employee. This cannot be countenanced. Second, as a matter of law, rejecting someone from a job does not qualify as a prior restraint on speech as that term is understood. “The term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (emphasis in original) (citation and internal quotation marks omitted). Here, Dr. Heap has not been forbidden from expressing his Humanist views merely because his application for the chaplaincy was denied. Rather, Dr. Heap simply cannot express his Humanist views as a Navy chaplain. Such an outcome does not operate as a complete ban on expression sufficient to warrant the label of prior restraint.

For similar reasons, the Court rejects Dr. Heap’s claim that Dr. Heap has a right to associate with others as a Navy chaplain. Dr. Heap has made no showing that he is prevented from.associating with other Humanists or with Humanists in the Navy. Dr. Heap is merely prevented from associating with others as a chaplain in the Navy. See City of Dallas v. Stanglin, 490 U.S. 19, 20-21, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (rejecting associational challenge to ordinance that limited ability of adults to gain access to teenage dance halls). Nor has Dr. Heap pointed to anything about the policy as written that- singles out Humanists and punishes Dr. Heap for being a-member. See Elfbrandt v. Russell, 384 U.S. 11, 18, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966) (declaring unconstitutional a state’s loyalty oath and law that prohibited anyone from holding office if they were a member of a group like the Communist party). Therefore, Dr. Heap’s associational claims also fail.

4. No Religious Test Clause Claim

Official Defendants argue Dr. Heap has failed to state a claim under the No Religious Test Clause of Article VI of the Constitution. Dr. Heap contends that the ecclesiastical endorsement requirements' of DoDI 1304.28, facially and as applied to Dr. Heap, conditions employment in a federal, office on a declaration of affiliation with a religious organization and gives preferential treatment to religious organizations .that have been approved by the AFCBi. (Pls.’ Opp’n at 51—52.)

Article VI of the Constitution provides “no religious test shall ever be required as a qualification to any office or public trust under the United States.” In Torcaso v. Watkins, the Supreme Court struck down a provision of the Maryland constitution which mandated a belief in the existence of God in order to hold a public office. 367 U.S. 488, 489-90, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). “We repeat and again affirm that neither a State nor the Federal Government can constitutionally force a person to profess a belief or disbelief in any religion.” Id. at 495, 81 S.Ct. 1680 (internal quotation marks omitted).

As noted, the purpose of the Chaplain Corps is to aid in the spiritual ministry of service members. The chaplaincy program itself does not run afoul of the Establishment Clause. See Katcoff, 755 F.2d at 231-32 (“Since the program- meets the requirement of voluntariness by leaving the practice of religion solely to the individual soldier, who -is free to worship or not as he chooses without fear of any discipline or stigma, it might be viewed as not proscribed by the Establishment Clause. Indeed, if the Army, prevented soldiers from worshipping in their own communities by removing them to areas where religious leaders of their persuasion and facilities were not available it could be accused of violating the Establishment Clause unless it provided them with a chaplaincy since its conduct would amount to inhibiting religion.”). The chaplaincy program itself has withstood constitutional challenge, and it follows that ensuring that chaplains can, do the job they were hired to do within that program is also constitutionally sound.

The Statement of Ecclesiastical Endorsement asks the endorsing organization (through a qualified agent) to verify that the candidate is credentialed and qualified for an appointment within the military chaplaincy. (See Statement of Ecclesiastical Endorsement, http://www.dtic.mil/whs/ directives/forms/eforms/dd2088.pdf.), Requiring chaplain candidates to be endorsed by an ecclesiastical organization does not run afoul of the No Religious Test Clause. Without such an endorsement, the Navy would have to entangle itself in the difficult decision of deciding whether a particular candidate was qualified to provide ministry to his or her identified faith group. On the other hand, requiring such an endorsement leaves it to the ecclesiastical organization itself to determine whether a particular • candidate fits the mold of its faith tradition. Therefore, the policy does not run afoul of the clause. •

Furthermore, the policy generally and as applied here did not require Dr. Heap to profess ; his ■ belief in any particular group. While an ecclesiastical organization may condition its endorsement on a belief in the tenets of that particular religion, the form itself did not require Dr.' Heap to declare his belief in any religion or the ecclesiastical organization to verify such a belief. It simply asks whether, in the opinion of the ecclesiastical organization, the candidate is fit to carry out the spiritual mission of that particular faith. Therefore, .Plaintiffs’ claim under the No Religious Test Clause fails.

Dr. Heap also claims that the requiremen