In re Navy Chaplaincy (323 F. Supp. 3d 25, 2018)

C. Proceedings Before Judge Kessler

In July 2012, Judge Kessler entered a comprehensive case management order. See Case Mgmt. Order # 1. Among other things, the order: (1) directed plaintiffs to file a new, consolidated complaint, see id. at 2; (2) continued the discovery stay, see id. at 3, apparently based on the Navy's representation that it intended to file a motion to dismiss on jurisdictional grounds, see Pls.' Mot. to Lift the Current Disc. Stay for All Remaining Claims ("Pls.' Disc. Mot.") [ECF No. 255]at 5; and (3) directed the parties to file motions on class certification and statute-of-limitations issues, see Case Mgmt. Order # 1 at 3. Judge Kessler also denied the pending dispositive motions without prejudice. See July 25, 2012 Minute Order.

Pursuant to Judge Kessler's case management order, plaintiffs filed a 120-page consolidated complaint asserting eighteen separate counts, see Compl. at 28-108, and a motion for class certification, see Pls.' Mot. for Class Certification [ECF No. 147], and the Navy filed a motion for partial summary judgment on statute-of-limitations grounds, see Defs.' Mot. for Partial Summ. J. as to Claims that Accrued Outside the Limitations Period [ECF No 159]. Due to a number of extensions in the briefing schedules on these motions, they were not resolved until September 2014, when Judge Kessler denied plaintiffs' motion for class certification, see In re Navy Chaplaincy, 306 F.R.D. 33, 38 (D.D.C. 2014), and granted defendants' motion for partial summary judgment on statute-of-limitations grounds, see In re Navy Chaplaincy, 69 F.Supp.3d 249, 251 (D.D.C. 2014). Specifically, Judge Kessler concluded that any claim filed "more than six years after finalization of the policies and personnel actions on which [it was] based" was time-barred. Id. at 256 (citing 28 U.S.C. § 2401(a) ). The parties later stipulated that this ruling required the dismissal of twenty-three of the sixty-five individual plaintiffs then in the action, all of whose alleged adverse personnel actions had taken place prior to the applicable six-year statute of limitations cutoff (1993 for the CFGC plaintiffs, 1994 for the Adair plaintiffs, and 2000 for the Gibson plaintiffs). See Status Report [ECF No. 199] at 2 n. 1, 4-5. The Court later held that one additional plaintiff, Thomas Rush, fell outside the statute-of-limitations period for similar reasons. See In re Navy Chaplaincy, 170 F.Supp.3d 21, 44 (D.D.C. 2016).

In early 2015, the Navy filed another motion to dismiss, this time on standing and other jurisdictional grounds. See Defs.' Mot. to Dismiss on Jurisdictional Grounds [ECF No. 217]. Judge Kessler granted that motion in part and denied it in part in early 2016. See In re Navy Chaplaincy, 170 F.Supp.3d at 27, 31-46. Specifically, Judge Kessler dismissed: (1) ten distinct claims related to "several of the Navy's alleged policies or practices relating to accession, personnel management, promotions, and career transition," id. at 31 ; (2) claims alleging a "culture of bias and hostility toward Non-liturgical chaplains," id. at 39 ; (3) other "claims alleging ad hoc actions against certain Plaintiffs," except for one claim alleging interference with prayer, id. at 40, 44 ; and (4) certain other individual claims that fell outside the limitations period, see id. at 44-46. The order accompanying Judge Kessler's opinion detailed the nine claims in the consolidated complaint that survived dismissal on jurisdictional and statute-of-limitations grounds:

1. Plaintiffs' challenge to the alleged policy of staffing one Roman Catholic chaplain on each promotion board since November 5, 1993 [six years before CFGC, the earliest of the three consolidated cases, was filed], set forth in Counts 2 and 4;

2. Plaintiffs' challenge to the inclusion of the Chief of Chaplains as president of certain promotion boards since November 5, 1993, set forth in Count 4;

3. Plaintiffs' challenge to the use of procedures employed by promotion boards since November 5, 1993, set forth in Counts 2 and 4;

4. Plaintiffs' challenge to the use of procedures employed by Selective Early Retirement ("SER") boards since November 5, 1993, set forth in Counts 2 and 4;

5. Plaintiffs' constitutional challenge to 10 U.S.C. § 613(a), set forth in Count 16;

6. Plaintiffs' claims under the Religious Freedom Restoration Act, 42 U.S.C. § 2000-bb et seq., set forth in Count 14;

7. Plaintiffs' challenge to the alleged constructive discharge of certain Plaintiffs since November 5, 1993, set forth in Count 11;

8. Plaintiffs' challenge to alleged retaliation against certain Plaintiffs since November 5, 1993, set forth in Count 12;

9. Plaintiffs' challenge to alleged instances of interference with the form of prayer of certain Plaintiffs since November 5, 1993, set forth in Count 9.

March 16, 2016 Order at 4-5 [ECF No. 238].

In November 2016, following a status conference at which plaintiffs asked that the discovery stay be lifted, the Court entered a scheduling order dividing plaintiffs' remaining claims into three groups and continuing the stay. See Nov. 18, 2016 Order [ECF No. 246]. The Court's order directed that, of the nine claims listed in its March 16, 2016 order, the first six would be addressed through summary judgment briefing, with the remaining three to be addressed thereafter. See Pls.' Proposal to Move the Case Forward [ECF No. 245] at 4. Thus, the Court ordered three rounds of summary judgment briefing: first, as to the constitutionality of 10 U.S.C. § 613a as applied to plaintiffs in this litigation ("Claim 1"); second, as to the Navy's alleged policy of placing one Roman Catholic chaplain on every chaplain selection board convened before late 2002, when the Navy began staffing the boards with only two chaplains ("Claim 2"); and third, as to plaintiffs' remaining challenges to selection-board procedures, as well as their parallel challenges under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb-1 to - 4 ("Claim 3"). See Nov. 18, 2016 Order at 1-2; Pls.' Proposal to Move the Case Forward at 3-4. The Court also continued the existing discovery stay. See Nov. 18, 2016 Order at 2.

Plaintiffs then filed a memorandum explaining their need for further discovery, see Pls.' Mem. Supporting Limited Disc. [ECF No. 247], but the Court ordered the parties to adhere to its November 2016 schedule, noting that plaintiffs had not requested relief by motion, see Jan. 10, 2017 Order [ECF No. 253]. Plaintiffs then filed a motion to lift the discovery stay in March 2017. See Pls.' Disc. Mot. Later that year, plaintiffs filed another motion-styled as a motion under Federal Rule of Civil Procedure 56(d) -to stay summary judgment briefing until the discovery stay was lifted. See Pls.['] Rule 56(d) Mot. [ECF No. 292]. Both motions are currently pending.

D. Proceedings Before This Court

In October 2017, while briefing on the parties' summary judgment and discovery motions was underway, Judge Kessler retired, and this case was reassigned to the undersigned judge. The Court later set a hearing on the pending motions and advised the parties that although it "ha[d] reviewed and taken under advisement [255] plaintiffs' motion to lift the discovery stay," it would "defer ruling on that motion until the motions hearing." Jan. 11, 2018 Order [ECF No. 302].

Plaintiffs thereafter moved to stay summary judgment briefing on Claim 3 (by then, briefing on Claims 1 and 2 was complete) pending the Court's disposition of their motion to lift the discovery stay and their constitutional challenge to 10 U.S.C. § 613a. See Pls.' Rule 56(d) Mot. for a Stay in the Summ. J. Proceedings [ECF No. 303]. The Court denied that motion, construing it as one for reconsideration of its January 2018 order and explaining that, "instead of reopening discovery on the eve of scheduled summary judgment briefing, the Court will consider plaintiffs' specific discovery requests in the context of their motion for additional discovery under Federal Rule of Civil Procedure 56(d)." Mar. 1, 2018 Order [ECR No. 310] at 2.

Plaintiffs then petitioned the D.C. Circuit for a writ of mandamus compelling the Court to stay summary judgment briefing, lift the discovery stay, and address the constitutionality of § 613a, see Navy Chaplain Pls.' Pet. for a Writ of Mandamus, In re Navy Chaplaincy, No. 18-5070 (D.C. Cir. Mar. 14, 2018), but the D.C. Circuit denied the petition, see Order, In re Navy Chaplaincy, No. 18-5070 (D.C. Cir. July 9, 2018). Plaintiffs thereafter filed a motion to submit additional Rule 56(d) declarations. See Pls.' Mot. for Leave to File a Suppl. to Their Mot. to Lift the Stay and Counsel's Rule 56(d) Decls. ("Pls.' Mot. to File Decls.") [ECF No. 328].

A motions hearing was held on July 19, 2018. The pending discovery motions and cross-motions for summary judgment are now fully briefed and ripe for decision.

LEGAL STANDARD

A party is entitled to summary judgment "if [it] shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law," and "[a]n issue is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "In determining whether a genuine issue of material fact exists, the court must view all facts, and draw all reasonable inferences, in the light most favorable to the party opposing the motion." Lane v. District of Columbia, 887 F.3d 480, 487 (D.C. Cir. 2018). However, if the movant shows that "there is an absence of evidence to support the nonmoving party's case," judgment should be entered in the movant's favor. Durant v. D.C. Gov't, 875 F.3d 685, 696 (D.C. Cir. 2017) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ), cert. denied sub nom.

Durant v. District of Columbia, --- U.S. ----, 138 S.Ct. 2608, 201 L.Ed.2d 1004 (2018).

Under Federal Rule of Civil Procedure 56(d), "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition" to a summary judgment motion, "the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." The purpose of this rule "is to prevent railroading the non-moving party through a premature motion for summary judgment before [it] has had the opportunity to make full discovery." Kakeh v. United Planning Org., Inc., 537 F.Supp.2d 65, 71 (D.D.C. 2008) (citation omitted). Thus, although motions under Rule 56(d)"are routinely granted, ... the rule is not properly invoked to relieve counsel's lack of diligence." Id. (quoting Berkeley v. Home Ins. Co., 68 F.3d 1409, 1414 (D.C. Cir. 1995) ). To prevail on a Rule 56(d) motion, the party opposing summary judgment "must (1) 'outline the particular facts [it] intends to discover and describe why those facts are necessary to the litigation'; (2) 'it must explain' why the nonmoving party could not produce those facts in opposition to the summary judgment motion; and (3) 'it must show that the information is ... discoverable.' " Moore v. Carson, Civil Action No. 14-2109 (JDB), 2017 WL 1750248, at *5 (D.D.C. May 3, 2017) (quoting Convertino v. U.S. Dep't of Justice, 684 F.3d 93, 99-100 (D.C. Cir. 2012) ).

DISCUSSION

I. THE NAVY'S SELECTION BOARD POLICIES AND PROCEDURES

Plaintiffs' central contention in this litigation is that, at various times throughout the 1990s and early 2000s, several Navy policies governing the staffing and proceedings of chaplain selection boards favored liturgical Christians (i.e., Roman Catholics and liturgical Protestants) at the expense of non-liturgical Protestants. Chief among the challenged policies is an alleged practice of placing at least one Catholic chaplain on every selection board convened before late 2002. See Pls.' Claim 2 MSJ at 7-9; Compl. ¶¶ 57(e), (g), 88(g), 90. Plaintiffs also challenge various other procedures governing selection board proceedings, most of which were in place throughout the entire period relevant to this litigation. See Pls.' Claim 3 MSJ at 1-2.

Plaintiffs contend that these policies violate the First Amendment's Establishment Clause, the Fifth Amendment's Equal Protection Clause, and RFRA. They seek, among other things, a declaration that the challenged policies were unlawful, that "all boards using [them]" were "void ab initio," and that the Navy must reconsider any adverse action taken against any plaintiff by one of those boards. Compl. at 111. Plaintiffs also seek an injunction directing the Navy to cease those challenged policies that are still in place, see id. at 112, to establish a "monitor[ing]" and "reporting" system for "claims of denominational preference," id. at 114, and to develop a "fitness report for chaplains" that is based on "objective performance criteria," id.

The Navy contends that plaintiffs lack Article III standing to assert these claims. It also contends that plaintiffs have failed to raise a genuine issue of material fact that the challenged policies were facially discriminatory or adopted for a discriminatory purpose, as D.C. Circuit precedent requires. The Navy therefore seeks summary judgment in its favor.

A. Article III Standing

At an "irreducible constitutional minimum," Article III's standing requirement has three elements:

First ... is injury-in-fact: A would-be plaintiff must have suffered "an invasion of a legally protected interest" that is (i) "concrete and particularized" rather than abstract or generalized, and (ii) "actual or imminent" rather than remote, speculative, conjectural or hypothetical. Second is causation: The asserted injury must be "fairly traceable to the challenged action of the defendant." Third is redressability: It must be "likely that a favorable decision by the court would redress the plaintiff's injury."

In re Navy Chaplaincy, 534 F.3d 756, 759 (D.C. Cir. 2008) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). On summary judgment, the plaintiff must establish each of these elements with "specific facts" set out by affidavit or other admissible evidence. United States v. $17,900 in U.S. Currency, 859 F.3d 1085, 1090 (D.C. Cir. 2017) (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ). This showing is required "for each claim [the plaintiff] seeks to press and for each form of relief that is sought." Town of Chester v. Laroe Estates, Inc., --- U.S. ----, 137 S.Ct. 1645, 1650, 198 L.Ed.2d 64 (2017) (citation omitted).

The Navy contends that plaintiffs lack Article III standing because they have failed to demonstrate that the adverse personnel actions taken against them were the result of the policies they challenge. On the contrary, the Navy argues, plaintiffs' own complaint attributes those actions "to causes entirely independent of the challenged procedures." Navy's Claim 3 Opp'n at 41 (pointing to allegations of "manipulation of the assignment process by senior chaplains," "manipulation of officer service records by unspecific persons," "inaccurate or incomplete fitness reports," and "retaliation, personal animosity, or 'blackballing' " (citations omitted) ). Moreover, the Navy claims, even if the plaintiffs' allegations were sufficient to demonstrate causation, plaintiffs have failed to cite any evidence substantiating those allegations. See id. 41. Thus, plaintiffs have failed to carry their burden as to the causation element of standing.

Plaintiffs respond by pointing out-correctly-that "[t]he 'injury in fact' in an equal protection case" alleging unlawful discrimination in a competitive process "is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit." Pls.' Claim 3 Reply (quoting Gratz v. Bollinger, 539 U.S. 244, 262, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (citing Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville ("Associated Gen. Contractors"), 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) ); see Worth v. Jackson, 451 F.3d 854, 859 (D.C. Cir. 2006) (applying this rule in the employment context). Thus, a plaintiff asserting such a claim "need only demonstrate that [he or she] is able and ready" to compete "and that a discriminatory policy prevents [him or her] from doing so on an equal basis." Gratz, 539 U.S. at 262, 123 S.Ct. 2411 (quoting Associated Gen. Contractors, 508 U.S. at 666, 113 S.Ct. 2297 ). When a plaintiff alleges such an injury, moreover, "[i]t follows from [the Supreme Court's] definition of 'injury in fact' that [the plaintiff] has sufficiently alleged" that the policy "is the 'cause' of its injury and that a judicial decree directing the [government] to discontinue [the policy] would 'redress' the injury." Associated Gen. Contractors, 508 U.S. at 666 n.5, 113 S.Ct. 2297.

Properly framed, therefore, the question here is not whether other factors aside from the allegedly discriminatory policies contributed to plaintiffs' non-promotions or selections for early retirement, see Scahill v. District of Columbia, 271 F.Supp.3d 216, 228 (D.D.C. 2017) (explaining that "[a] defendant need not be the 'but-for cause' of a plaintiff's injuries" to establish standing), but rather whether a discriminatory Navy policy prevented plaintiffs from competing in those processes "on an equal basis," Gratz, 539 U.S. at 262, 123 S.Ct. 2411 (citation omitted); accord Monterey Mech. Co. v. Wilson, 125 F.3d 702, 707 (9th Cir. 1997) (explaining that the plaintiff in this type of equal protection case "need not establish that the discriminatory policy caused it to lose" the benefit sought). Moreover, because courts "must be careful not to decide the questions on the merits" when evaluating standing, the Court "must assume arguendo that the Navy's operation of its [selection boards] favors Catholic chaplains and disfavors non-liturgical Protestant chaplains." In re Navy Chaplaincy, 534 F.3d at 760 (citation and internal quotation marks omitted). Thus, plaintiffs also need not prove that the policies they challenge were discriminatory to establish standing; rather, all they must show is that each plaintiff received an adverse recommendation from a selection board that employed (or was convened pursuant to) the challenged policies.

When so clarified, Article III's standing requirement is easily satisfied in this case. The Navy does not dispute that each individual plaintiff received an adverse recommendation from a promotion or selective early retirement board convened when at least some of the challenged policies were in place. See, e.g., Compl. add. A ¶ 1 (alleging that one plaintiff, Robert H. Adair, was "selected for early retirement in FY 95"-a fiscal year in which all of the challenged policies were allegedly in place-"by a Selective Early Retirement Board ... that selected only Non-liturgical chaplains while allowing Liturgical chaplains with inferior records to continue on active duty"). This is sufficient to permit the Court to conclude that plaintiffs have standing. See Fed. R. Civ. P. 56(e) ("If a party fails ... to properly address another party's assertion of fact ..., the court may ... consider the fact undisputed for purposes of the motion."). Indeed, the Court is mindful that this case has been before three district judges and at least five panels of the D.C. Circuit-each of which had an independent obligation to determine its own subject-matter jurisdiction, see Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) -and that none found standing to be lacking. The Court explicitly confirms the implicit conclusions of these prior courts that plaintiffs have standing and turns now to the merits of plaintiffs' claims.

B. Legal Standards

The D.C. Circuit set out the legal standards that govern plaintiffs' Establishment Clause and equal protection claims in a prior decision in this very litigation. See In re Navy Chaplaincy, 738 F.3d at 428-31 (concluding that plaintiffs' challenges to several of the same selection-board procedures at issue here did not warrant preliminary injunctive relief because they were unlikely to succeed on the merits). The Court reviews those standards only briefly here.

To evaluate plaintiffs' equal protection claim, the Court must first determine whether the challenged selection-board policy "on its face prefers any religious denomination." Id. at 428. If it does, then strict scrutiny applies; if it does not, then for strict scrutiny to apply plaintiffs must show either that the policy was "adopted with discriminatory intent" or that it led to a "pattern of disparate outcomes from which unconstitutional discriminatory intent could be inferred." Id. at 429. To imply discriminatory intent on its own, a pattern of disparate outcomes must be "stark," id. (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ), which means that it must be on par with the patterns at issue in two illustrative Supreme Court cases: one in which the boundaries of a city were altered so as to remove nearly all of its 400 African American voters but not a single white voter, and another in which a city refused to waive a building ordinance for over 200 Chinese applicants but waived the requirement for all non-Chinese applicants except one. See id. at 428-30 (first citing Gomillion v. Lightfoot, 364 U.S. 339, 341, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) ; then citing Yick Wo v. Hopkins, 118 U.S. 356, 359, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) ). Unless strict scrutiny applies for one of these three reasons, plaintiffs must demonstrate that "the polic[y] lack[s] a rational basis." Id. at 430. Otherwise, their equal protection claim fails.

The Establishment Clause inquiry proceeds along similar lines. The first question is "whether the law facially differentiates among religions." Id.; accord Trump v. Hawaii, --- U.S. ----, 138 S.Ct. 2392, 2417, 201 L.Ed.2d 775 (2018) ("[T]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." (citing Larson v. Valente, 456 U.S. 228, 246, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) ) ). If it does, then strict scrutiny applies; if it does not, then the court "proceed[s] to apply the customary three-pronged Establishment Clause inquiry derived from Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)." In re Navy Chaplaincy, 738 F.3d at 430 (citation omitted). Under that test, a law or policy is valid only if it "(1) ha[s] a secular legislative purpose; (2) ha[s] a principal or primary effect that neither advances nor inhibits religion; and (3) [does] not result in excessive entanglement with religion or religious institutions." Id. (citations omitted).

A law or policy has an unconstitutional purpose if "the government acted with the purpose of advancing or inhibiting religion." Agostini v. Felton, 521 U.S. 203, 222-23, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). It has an unconstitutional effect if it "appear[s] to endorse religion in the eyes of a 'reasonable observer,' who 'must be deemed aware of the history and context underlying a challenged program.' " In re Navy Chaplaincy, 738 F.3d at 430 (emphasis omitted) (quoting Zelman v. Simmons-Harris, 536 U.S. 639, 655, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) ). As in the equal protection context, to satisfy the "effects" test with statistical evidence alone, plaintiffs must show a stark pattern of disparate outcomes. See id. at 431 (concluding that "plaintiffs' statistics fail to show government endorsement of particular religions under the reasonable observer test for the same reason that, in the equal protection context, they failed to show intentional discrimination paralleling that of Gomillion or Yick Wo"); see also Harkness v. Sec. of Navy, 858 F.3d 437, 447-451 (6th Cir. 2017) (applying the same standards to nearly identical Establishment Clause claims on summary judgment), cert. denied sub nom. Harkness v. Spencer, --- U.S. ----, 138 S.Ct. 2648, 192 L.Ed.2d 78 (2018).

C. The Navy's Alleged "One Roman Catholic" Policy

Plaintiffs first seek summary judgment on their constitutional challenge to the Navy's alleged policy of placing at least one Roman Catholic chaplain on each chaplain selection board convened between 1948 and late 2002. See Pls.' Claim 2 MSJ at 7. Plaintiffs challenge this policy only under the Establishment Clause, not the Equal Protection Clause, see id. at 5-7; as noted above, however, the analysis laid out by the D.C. Circuit is essentially the same under either provision. According to plaintiffs, that policy was facially discriminatory under Larson, see Pls.' Claim 2 MSJ at 18-29, and also fails at each step of the Lemon test, see id. at 29-34. The Navy cross-moves for summary judgment, arguing that plaintiffs have not demonstrated either that the policy existed, see Navy's Claim 2 Opp'n at 16-21, or that it was adopted with discriminatory intent, see id. at 21-35. For the reasons given below, plaintiffs' motion will be denied, and the Navy's will be granted.

1. The Navy's Board-Staffing Policies Were Facially Neutral.

The parties do not dispute that until late 2002, the Navy staffed chaplain selection boards with one or two (or at most three) non-chaplain officers and filled the remaining seats with chaplains. See Decl. of Killian Kagle ("Kagle Decl.") [ECF No. 47-9] at 35-46 (listing the denominational affiliation and faith group category of every member of every promotion selection board convened between 1988 and 2002 and every selective early retirement board convened between 1991 and 2002); SECNAVINST 1401.3, Encl. 1 ¶ 1(c)(1) (providing that "[a]t least one member shall be a [non-chaplain] officer" and that "[t]he remaining members should be [chaplains]"). The record is also clear that every promotion board convened between 1988 and 2002 had between four and seven chaplains and that, with one exception, at least one of those chaplains was Catholic. See Kagle Decl. at 35-46. Plaintiffs contend that this fact alone demonstrates that the Navy had a "policy" of placing at least one Catholic chaplain on every board, and that this policy triggers strict scrutiny because it was facially discriminatory.

The Navy's evidence tells a different story. According to the Navy, during the relevant time period, chaplain selection boards were staffed with chaplains from a "mix" of faith group categories-including Catholics-as part of a larger effort to ensure selection-board diversity. See Rock Decl. ¶ 5-8 (testimony of former Navy personnel officer that selection boards "represented, to the extent possible, the different experiences of the many chaplains within the Chaplain Corps," including "east-coast chaplains, west-coast chaplains, Navy chaplains, Marine Corps chaplains, Coast Guard chaplains, and chaplains from each faith-group category"). Thus, of the 202 chaplains staffed on the forty-two chaplain promotion boards convened between 1988 and 2002, sixty-six were liturgical Protestants, sixty-nine were non-liturgical Protestants, forty-eight were Catholic, eighteen fell in the Special Worship faith group category, and one was unknown. See Kagle Decl. at 35-44. Similarly, of the twenty-seven chaplains staffed on the twelve selective early retirement boards convened between 1991 and 1998, ten were liturgical Protestants, ten were non-liturgical Protestants, four were Catholic, and two were Special Worship. Id. at 45-46. Among the four faith groups, then, the Navy's policies hardly resulted in outsized representation for Catholics.

The Navy also points to its own regulations, which represent the only written evidence of its board-staffing policies during the relevant time period. Far from directing selection boards (or those responsible for convening them) to discriminate against non-liturgical Protestants, those regulations expressly prohibited discrimination on the basis of religion. See SECNAVINST 1401.3 ¶ 4(a) ("Exclusion from board membership by reason of gender, race, ethnic origin, or religious affiliation is prohibited."); SECNAVINST 1401.3, Encl. 1 ¶ (1)(c)(1)(e) (stating that members of chaplain selection boards "shall be nominated without regard to religious affiliation"). Moreover, a federal statute requires selection board members to swear an oath to act "without prejudice or partiality and having in view both the special fitness of officers and the efficiency of [the Navy]." 10 U.S.C. § 613. These sources all suggest that the Navy's board-staffing policies were non discriminatory-at least on their face. See Harkness, 858 F.3d at 447 (concluding that other procedures employed by the Navy's selection boards were not facially discriminatory under Larson, in part because of the Navy's facially neutral regulations).

Plaintiffs offer nothing to rebut this evidence. Instead, they quibble with the applicable legal standard, arguing that the presence of one Catholic on each board triggers strict scrutiny because it "suggest[s]'a denominational preference.' " Pls.' Claim 2 MSJ at 17 (emphasis added) (quoting County of Allegheny v. ACLU, 492 U.S. 573, 609, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (quoting Larson, 456 U.S. at 246, 102 S.Ct. 1673 ), abrogated on other grounds by Town of Greece v. Galloway, --- U.S. ----, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014) ). But this precise argument was rejected by the Sixth Circuit in Harkness, which concluded-relying in part on the D.C. Circuit's 2013 decision in this case-that "strict scrutiny applies only when the law facially prefers one religion over another." 858 F.3d at 447 (collecting cases and concluding that this approach was "more consistent with both Supreme Court and [Sixth Circuit] precedent"). And in any case, this Court is not free to depart from the legal standards previously articulated by the D.C. Circuit in this litigation. " Larson teaches that, when it is claimed that a denominational preference exists, the initial inquiry is whether the law facially differentiates among religions." In re Navy Chaplaincy, 738 F.3d at 430 (emphasis added) (citing Hernandez v. Comm'r, 490 U.S. 680, 695, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) ). At most, the presence of one Catholic on each selection board suggests that the Navy's facially neutral board-staffing policies may have resulted in disproportionate representation among denominations. But it does not show the existence of a facially discriminatory policy and so does not trigger strict scrutiny under Larson.

2. Plaintiffs Have Not Demonstrated that the Navy's Facially Neutral Board-Staffing Policies Were Adopted for a Discriminatory Purpose.

Similarly, plaintiffs have failed to raise a genuine issue of material fact that the Navy's facially neutral board-staffing policies were adopted for a discriminatory purpose. Although the record reveals a policy of staffing selection boards with a "mix" of chaplains from different faith group categories, see Rock Decl. ¶¶ 5-8, plaintiffs have pointed to nothing in the record to suggest that this policy was intended to benefit any denomination at the expense of another. On the contrary, the Navy's evidence suggests that the policy was intended to "maximize" a selection board's ability to consider candidates from diverse backgrounds, as well as to "dispel any potential appearance of bias or impropriety." Id. ¶ 6. Plaintiffs offer no direct evidence to contravene the asserted secular objectives of the Navy's board-staffing policies.

Instead, plaintiffs argue (in essence) that the sheer improbability that at least one Catholic would appear on nearly every chaplain selection board during a 54-year period demonstrates that the Navy's placement of Catholics on the boards was intentional. See, e.g., Pls.' Claim 2 MSJ at 7-9. But the relevant question for Lemon's purpose prong is not whether the challenged policy was intentional or unintentional; rather, the question here is whether its purpose was specifically to prefer one religion over another. See Larson, 456 U.S. at 254, 102 S.Ct. 1673 (invalidating a Minnesota statute whose legislative history "demonstrated[ ] that [it] was drafted with the explicit intention of including particular religious denominations and excluding others," including, for example, evidence that legislators "delet[ed] ... clause[s] ... for the sole purpose of exempting the [Roman Catholic] Archdiocese from the ... Act"); Wallace v. Jaffree, 472 U.S. 38, 60, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (invalidating an Alabama school prayer statute where "[t]he legislature enacted [the law] ... for the sole purpose of expressing the State's endorsement of prayer activities"). Because plaintiffs have offered no direct evidence of any such purpose here, their Establishment Clause claim fails at the purpose prong of the Lemon test.

3. Plaintiffs Have Not Demonstrated that the Navy's Facially Neutral Board-Staffing Policies Had a Sufficient Discriminatory Impact.

Plaintiffs fare no better at Lemon's effects prong. Here, plaintiffs argue that the Navy's board-staffing policies "gave [Catholic] chaplains a reserved seat for every promotion board which resulted in higher promotion rates for [Catholics] than other denominations." Pls.' Claim 2 MSJ at 34; see Compl. ¶ 57(e) (alleging that the Navy's board-staffing policies "led to a high[er] selection rate for Catholics not based on performance or other legitimate selection criteria"). For this proposition, plaintiffs rely chiefly on a third-party study showing at most a 14.5% differential in the promotion rates of Catholic chaplains as compared to non-liturgical Protestant chaplains. See Ex. 17 to Pls.' Claim 2 MSJ ("Faith Group Promotions") [ECF No. 276-19]. Plaintiffs also rely on the expert declaration of Dr. Harald Leuba, a statistician, who concludes that the differential in promotion rates is statistically significant. See Apr. 6, 2017 Decl. of Harald Leuba [ECF No. 276-46] at 17; Harkness, 858 F.3d at 449 (explaining that a finding of statistical significance "means only that the disparity in promotion decisions was not 'due to chance' " (citing In re Navy Chaplaincy, 738 F.3d at 431 ) ).

But as the D.C. Circuit explained earlier in this litigation, to make out a disparate-impact claim using statistics, a plaintiff must demonstrate a "stark" disparity in outcomes between the classes at issue. In re Navy Chaplaincy, 738 F.3d at 429, 431. The D.C. Circuit previously concluded that plaintiffs were unlikely to succeed on the merits of their disparate-impact claim because their evidence of "a 10% advantage in promotion rates" did not "remotely approach the stark character" necessary to make this showing. Id. at 429. The same is true here. Plaintiffs point to a differential in promotion rates between Catholic and non-liturgical Protestant chaplains that varies, based on the rank in question, between 2.5% (a 79.5% promotion rate for non-liturgical Protestant chaplains at the lieutenant commander rank versus an 82% promotion rate for Catholics) and 14.5% (a 69.2% promotion rate for non-liturgical Protestants at the commander rank versus an 83.7% promotion rate for Catholics). See Pls.' Claim 2 MSJ at 20-21 (citing a study conducted by the Center for Naval Analysis ("CNA") in 1998); see also Faith Group Promotions. If a 10% disparity does not "remotely approach" the showing necessary to prevail on a disparate-impact claim, then surely a 14.5% disparity is likewise insufficient. Cf. Gomillion, 364 U.S. at 341, 81 S.Ct. 125 ; Yick Wo, 118 U.S. at 359, 6 S.Ct. 1064. Moreover, even if it were sufficient, plaintiffs have offered no evidence that the alleged one-Roman-Catholic policy caused the disparity. See In re Navy Chaplaincy, 738 F.3d at 429 (observing that statistically significant disparities in chaplain promotion rates are potentially influenced by multiple causes).

Hence, plaintiffs have failed to establish that strict scrutiny applies under a disparate-impact theory (or any other theory). And because plaintiffs have likewise failed to establish that the Navy's board-staffing policies lack a rational basis, they have failed to make out their constitutional challenge to the Navy's alleged policy of placing one Catholic chaplain on every chaplain selection board. The Navy is therefore entitled to summary judgment as to that claim.

D. Selection-Board Procedures

Next, plaintiffs challenge a set of procedures used by the selection boards themselves, arguing that those procedures unconstitutionally disadvantage non-liturgical Protestant chaplains. See Pls.' Claim 3 MSJ at 1-2. Specifically, plaintiffs challenge the following: (1) the boards' use of secret ballots; (2) the Chief of Chaplains' role as president of the selection boards and involvement in choosing each board's members; (3) the practice whereby a single board member first reviews a candidate's file and only then briefs the full board on the candidate; (4) the practice of allowing board members to discuss a candidate's file before voting; and (5) a prior practice whereby each candidate's denomination was disclosed to the selection board. See id.

The D.C. Circuit previously rejected plaintiffs' motion for a preliminary injunction against the first and second of these practices: secret voting and the Chief of Chaplains' role in convening the selection boards. See In re Navy Chaplaincy, 738 F.3d at 427. The court concluded that: (1) the policies were facially neutral, see id. at 428-29 (explaining that "even if one of the chaplains always serves as board president (as the chaplains allege), the board president ... must be a person chosen for the board without regard to religious affiliation" and that "the practice of secret voting is neutral on its face"); (2) "the chaplains have presented no evidence of discriminatory intent in the policies' enactment," id. at 429 ; and (3) plaintiffs' statistical evidence was insufficiently "stark" to raise an inference of discriminatory intent, see id. (rejecting evidence of "a 10% advantage in promotion rates for officers of the same denomination as the Chief of Chaplains"). Plaintiffs' statistics were further undermined by the fact that they had "made no attempt to control for potential confounding factors, such as promotion ratings, education, or time in service." Id.

Little has changed since the D.C. Circuit's decision in 2013. As plaintiffs' counsel conceded at the motions hearing, neither the two policies at issue then nor the three additional policies challenged now-briefing, discussion, and the now-discontinued practice of disclosing chaplain denominations-facially discriminates against any specific denomination, and plaintiffs point to no evidence that they were adopted for a discriminatory purpose. Moreover, save for a new report from Dr. Leuba and two largely inapposite studies, see Pls.' Claim 3 MSJ at 28-33, plaintiffs present no new statistical evidence concerning the challenged policies-and certainly no evidence demonstrating a "stark" disparity in promotion rates on par with Gomillion or Yick Wo.

Plaintiffs contend that Dr. Leuba's new report accounts, at least, for the "confounding factors" identified by the D.C. Circuit in its review of his prior analysis. See Pls.' Claim 3 MSJ at 28-31. But Dr. Leuba's new report-entitled "Promotions in the U.S. Navy Chaplain Corps Are Not Now, Nor Have They Ever Been, Merit Based, Nor Have They Ever Been Denominationally Neutral[,] Let me Explain Why"-fails to meaningfully respond to the D.C. Circuit's concern that the statistical disparities identified by plaintiffs could have resulted from other factors. See, e.g., Feb. 22, 2018 Decl. of Harald Leuba [ECF

No. 313-40] ¶ 75 (concluding that "there is no basis for observing or testing the value or benefit of an additional amount of education"); id. ¶ 94 (acknowledging that Dr. Leuba had not controlled for promotion ratings). Nor are the two new studies cited by plaintiffs of any more than tangential relevance, since neither purports to examine the chaplaincy during the time period at issue in this litigation. See Pls.' Claim 3 MSJ at 31-32 (discussing a study analyzing Methodists in the chaplaincy between 1975 and 1987 and a 1992 PhD dissertation analyzing the relationship between faith group categories and promotion rates). And in any case, none of this new evidence even attempts to argue that plaintiffs' statistical evidence demonstrates a sufficiently stark disparity to support their constitutional claims.

Instead of attempting to show a disparity of the required magnitude, plaintiffs urge this Court to disregard the D.C. Circuit's prior decision in this litigation and to apply instead the standards articulated in Palmer v. Shultz, 815 F.2d 84 (D.C. Cir. 1987), a Title VII case involving a disparity in selection rates between male and female job applicants, see id. at 87, 91-92 (suggesting that a "5% probability of randomness" in disparate outcomes would raise an inference of intentional discrimination under Title VII). But the D.C. Circuit has previously rejected plaintiffs' attempts to rely on Title VII cases involving "statistically significant" disparities, doubting not only that plaintiffs' "statistical evidence properly controlled for confounding variables," but also that "a court could properly impute a belief in denominational favoritism to the reasonable observer simply on the basis of statistics that might satisfy a plaintiff's Title VII burden." In re Navy Chaplaincy, 738 F.3d at 431. Thus, even if the 14.5% promotion rate disparity identified by plaintiffs were statistically significant, that fact alone would be insufficient to support plaintiffs' constitutional claims. See id. ("[W]hen reasonable observers find that the term ['statistically significant'] means only that there is little likelihood that the 'discrepancy' is due to chance, they are most unlikely to believe that the policies convey a message of government endorsement."); see also Burgis v. New York City Dep't of Sanitation, 798 F.3d 63, 69 (2d Cir. 2015) ("[T]o show discriminatory intent in a[n] ... Equal Protection case based on statistics alone, the statistics must not only be statistically significant in the mathematical sense, but they must also be of a level that makes other plausible non-discriminatory explanations very unlikely.").

Plaintiffs' specific argument that they have brought a "religious disparate impact" claim-one that requires no proof of discriminatory intent-is similarly misguided. See Pls.' Claim 3 Reply at 18-20. Plaintiffs are correct that under Title VII, a plaintiff may make out a prima facie case of discrimination by presenting "statistical evidence ... that 'observed, nonrandom disparities' in hiring, firing, or other significant employment decisions 'were caused by a "facially neutral" selection criterion.' " Davis v. District of Columbia, 246 F.Supp.3d 367, 393 (D.D.C. 2017) (quoting Palmer, 815 F.2d at 114 ). They are also correct that under this so-called "disparate impact" theory of discrimination, "[p]roof of discriminatory motive ... is not required." Id. at 392 (quoting Anderson v. Zubieta, 180 F.3d 329, 338 (D.C. Cir. 1999) ). But the Supreme Court has repeatedly made clear that this theory of discrimination is not available under the Equal Protection Clause, see City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194, 123 S.Ct. 1389, 155 L.Ed.2d 349 (2003) (" '[P]roof of racially discriminatory intent or purpose is required' to show a violation of the Equal Protection Clause." (quoting Arlington Heights, 429 U.S. at 265, 97 S.Ct. 555 ) ); Washington v. Davis, 426 U.S. 229, 247, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) ("Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious ... discrimination forbidden by the Constitution."), and plaintiffs offer no reason to reach a different conclusion as to the Establishment Clause. Their attempt to repackage their constitutional claims under a "disparate impact" theory is therefore unavailing.

In sum, plaintiffs' challenges to the selection-board policies at issue here fail for essentially the same reason that plaintiffs previously failed to secure a preliminary injunction against those policies: plaintiffs have failed to demonstrate that the challenged policies either were facially discriminatory, were adopted with discriminatory intent, or had a stark enough disparate impact on non-liturgical Protestant chaplains that discriminatory intent could be inferred. See In re Navy Chaplaincy, 738 F.3d at 428-31. Under the standards previously articulated by the D.C. Circuit, therefore, the Navy is entitled to summary judgment on these claims.

Perhaps recognizing this to be the case, plaintiffs attempt to reframe their claims in various ways. For example, they argue that the Chief of Chaplain's role in choosing selection board members impermissibly "delegate[s] ... discretionary civic authority to the Chief and other denominational representatives." Pls.' Claim 3 MSJ at 39; see id. at 37-42 (first citing Larkin v. Grendel's Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982) ; and then citing Board of Education v. Grumet, 512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) ). But this Court and the D.C. Circuit have repeatedly rejected this argument. See In re Navy Chaplaincy, 697 F.3d at 1179 (explaining that unlike in Larkin, where "a Massachusetts statute grant[ed] religious institutions an effective veto power over applications for liquor licenses" without requiring any "reasons, findings, or reasoned conclusions," here "Congress and the Secretary of the Navy have articulated secular, neutral standards to guide selection board members in evaluating candidates for promotion"); Adair, 417 F.Supp.2d at 6 (rejecting plaintiffs' "assumption" that "the usual rule for a chaplain sitting on a promotion board will be to discriminate against promotion candidates on the basis of religious denomination" (citation omitted) ); Adair, 183 F.Supp.2d at 61-62 (distinguishing Larkin on the ground that chaplains on selection boards act "first and foremost [as] Naval officers ... evaluating a fellow officer's fitness for promotion," not "private clergy" exercising unchecked discretion); see also Harkness, 858 F.3d at 449-50 (rejecting the same argument on summary judgment). Plaintiffs provide no reason to reach a different conclusion this time around.

Similarly unpersuasive is plaintiffs' argument that the challenged procedures impermissibly "vest[ ] ... unbridled discretion in a government official." See Pls.' Claim 3 MSJ at 21-26 (quoting Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 132-33, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ). Even assuming that this theory applies in the Establishment Clause context- Forsyth County, on which plaintiffs chiefly rely, was a free-speech case-plaintiffs have simply not raised a genuine factual issue that the procedures vest anyone with the type of unchecked power at issue in plaintiffs' cited authorities. See Forsyth County, 505 U.S. at 133, 112 S.Ct. 2395 (striking down an ordinance that "left [it] to the whim of" a county official to set the fee amount for a public assembly permit, where the official was "not required to rely on any objective factors" or to "provide any explanation" for his "unreviewable" decision). Plaintiffs have not explained how an individual member of a seven-member selection board could exercise such authority, and they do not dispute that the decisions of the selection boards themselves are subject to multiple layers of administrative and judicial review. See 10 U.S.C. § 628(g). Hence, plaintiffs' alternative legal theories also fail, and the Navy is entitled to summary judgment on plaintiffs' challenges to its selection-board procedures.

II. PLAINTIFFS' CONSTITUTIONAL CHALLENGE TO 10 U.S.C. § 613a

Plaintiffs also challenge the constitutionality of 10 U.S.C. § 613a's ban on the disclosure of selection board proceedings. See Pls.' Claim 1 MSJ at 1. That provision states that "[t]he proceedings of a selection board convened under section ... 611 ... of this title may not be disclosed to any person not a member of the board," 10 U.S.C. § 613a(a), and specifically provides that the "discussions and deliberations" of such a board "are immune from legal process," "may not be admitted as evidence," and "may not be used for any purpose in any action, suit, or judicial or administrative proceeding without the consent of the Secretary of the military department concerned," id. § 613a(b). Plaintiffs allege that § 613a is unconstitutional as applied to them, because it deprives them of evidence needed to prevail on their constitutional challenges to the various selection-board procedures described above. See Pls.' Claim 1 MSJ at 2.

But plaintiffs have already unsuccessfully challenged § 613a-as well as its statutory predecessor, § 618(f) -several times. They brought their first challenge after the D.C. Circuit held in 2004 that § 618(f) prohibited the disclosure of selection-board proceedings in litigation. See In re England, 375 F.3d at 1181. In 2006, this Court rejected plaintiffs' argument that § 618(f)"bars judicial review of constitutional claims arising out of promotion-board proceedings," explaining that the statute "merely restricts the evidence available to the plaintiffs in support of their claims." Adair, 451 F.Supp.2d at 215-17. And in any case, because plaintiffs "challenge the Navy's policies, not simply the alleged impermissible intentions and actions of individual board members," id. at 219, the evidence barred by § 618(f) was not strictly necessary to proving their claims, see id. at 218 (noting that § 618(f)"does not preclude testimony ... concerning directives, orders, or policies (written or unwritten) communicated to board members that may have been intended to infuse a denominational preference into the promotion selection process"). Finally, the Court concluded that even if § 618(f) did bar plaintiffs from accessing information necessary to proving their claims, plaintiffs had failed to establish the existence of "a constitutional right of access to evidence essential to establishing constitutional claims, even when that evidence is privileged by statute." Id. at 220. Thus, given "the absence of any precedent recognizing a right to statutorily privileged information in a civil case involving constitutional claims, the thinness of the plaintiffs' legal theory, and the broad deference constitutionally afforded Congress to regulate the Navy," the Court in Adair rejected plaintiffs' challenge to § 618(f). Id. at 222.

Plaintiffs again challenged the constitutionality of the statutory privilege for selection-board proceedings after Congress repealed § 618(f) and enacted § 613a. See In re Navy Chaplaincy, 512 F.Supp.2d 58, 61 (D.D.C. 2007) (reversing the Court's earlier ruling that plaintiffs could discover selective early retirement board proceedings under § 618(f) and rejecting plaintiffs' argument that "to deny them discovery of [those] proceedings would effectively deny them judicial review of their causes of action by denying them the evidence necessary to vindicate them"). The Court reiterated its earlier conclusion that " 'information may be withheld [pursuant to a statutory privilege], even if relevant to the lawsuit and essential to the establishment of plaintiff's claim,' whether statutory or constitutional." Id. (quoting Baldrige v. Shapiro, 455 U.S. 345, 351, 360, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982) ). It then warned: "Whatever wisdom may be associated with the adage 'the third time's the charm,' the plaintiffs are advised to accept this second ruling as conclusive and refrain from testing their luck a third time before this court." Id. at 62.

Plaintiffs have not heeded that admonition, offering no new authority to buttress their third attempt to assert a constitutional right to evidence in support of their constitutional claims. Rather, they argue chiefly that the reasoning underlying Judge Urbina's 2006 and 2007 decisions was undercut in 2013, when this Court-and, later, the D.C. Circuit-held that discriminatory intent was a necessary element of their constitutional claims. See Pls.' Claim 1 MSJ at 2, 12-15 (arguing that "the current law of the case requires Plaintiffs [to] demonstrate intent to discriminate on the part of the chaplain board members"); see also In re Navy Chaplaincy, 738 F.3d at 428-31, aff'g 928 F.Supp.2d 26 (D.D.C. 2013).

But the reasoning of those prior decisions remains valid here. For one thing, the law concerning the role of intent in equal protection and Establishment Clause challenge was established by Supreme Court precedent well before the early 2000s, so plaintiffs' suggestion that the 2013 decisions of this Court and the D.C. Circuit somehow upset the prevailing legal framework underlying Judge Urbina's earlier decisions is simply unfounded. See, e.g., In re Navy Chaplaincy, 738 F.3d at 429-30 (citing, among other authorities, Larson, Lemon, and Arlington Heights-all Supreme Court cases from the 1970s and 1980s). And even if those decisions had altered the applicable legal framework, that fact still would not undermine the reasons that Judge Urbina actually gave for his decision: that the proceedings of individual selection boards are of limited relevance to plaintiffs' constitutional claims, see Adair, 451 F.Supp.2d at 217-19, and that in any case plaintiffs have "advanced no coherent theory supporting" an unqualified right of access to information needed to prove such claims, see id. at 220. Because plaintiffs have still not meaningfully addressed these points-which Judge Urbina first articulated over a decade ago-the Navy is entitled to summary judgment on plaintiffs' challenge to the constitutionality of § 613a.

III. PLAINTIFFS' REQUESTS FOR ADDITIONAL DISCOVERY

Finally, plaintiffs have filed several motions for additional discovery. These include plaintiffs' March 2017 motion to lift the discovery stay, see Pls.' Discovery Mot., their September 2017 motion under Federal Rule of Civil Procedure 56(d) to stay summary judgment briefing until the discovery stay was lifted, see Pls.['] Rule 56(d) Mot., and their July 2018 motion seeking leave to file additional declarations, see Pls.' Mot. to File Decls. For the reasons that follow, plaintiffs' discovery motions will be denied.

A. Plaintiffs' March and September 2017 Rule 56(d) Motions

The March 2017 motion to lift the discovery stay seeks discovery of various materials in support of the challenges to the Navy's selection-board policies. In support of the challenge to the Navy's alleged one-Roman-Catholic policy, plaintiffs seek the following documents: (1) unredacted copies of two reports prepared by the inspectors general of the Department of Defense and the Navy concerning allegations of religious discrimination by chaplain selection boards in 1997 and 1998 (the "IG reports"), see Pls.' Discovery Mot. at 25-27; (2) documents related to the Navy's alleged decision to stop staffing chaplain selection boards with two Roman Catholic chaplains beginning in 1986 and its decision to staff selection boards with two chaplains and five non-chaplain officers beginning in 2003, see id. at 27-28; (3) documents mentioning the phrase "denominational balancing," id. at 28-29; (4) communications between the Chief of Chaplains and his staff regarding the chief's nominations to chaplain selection boards, see id. at 29-30; and (5) data from various sources regarding the denominational composition of selection boards throughout the 1970s, 1980s, and 1990s, see id. at 30-31. In support of their challenge to the procedures employed by the selection boards themselves, plaintiffs seek (among other things) the results of promotion board proceedings from 2005 to 2016 (including "identification of those seeking promotion as well as those selected"), "Alpha rosters" from 2013 to 2017, and "[c]opies of complaints about [chaplain] board misconduct and all investigations of [such] misconduct from 1993 to the present." Pls.' Discovery Mot. at 34-36.

Plaintiffs' primary argument in support of their discovery requests is that the Court never formally established a cutoff for discovery. See id. at 11-15. The Navy responds that the parties agreed to a nine-month discovery period in 2002 (although this period was admittedly stayed several times and was never formally closed), and that since then plaintiffs have had ample time to obtain the discovery they need. See Navy's Discovery Opp'n at 1-2; Fed. R. Civ. P. 26(b)(2)(C)(ii) (providing that a court "must" limit discovery where "the party seeking discovery has had ample opportunity to obtain the information by discovery in the action"); Moore, 2017 WL 1750248, at *5 (a party seeking to stay summary judgment pending discovery of additional facts " '... must explain' why [it] could not produce those facts in opposition to the summary judgment motion" (quoting Convertino, 684 F.3d at 99-100 ) ). Moreover, the Navy argues, most of the discovery that plaintiffs now seek is either irrelevant, privileged, or duplicative, and hence cannot support reopening discovery now.

As a brief review of the history of discovery in this litigation demonstrates, the Navy is correct that plaintiffs have had ample time to conduct discovery. Discovery in CFGC and Adair began in 2002, after the Court resolved the parties' first round of dispositive motions. See Aug. 27, 2002 Order, CFGC, ECF No. 119; Aug. 27, 2002 Order, Adair, ECF No. 72. At the Court's direction, the parties submitted a joint discovery plan that outlined a nine-month discovery period, which would begin in November 2002 and conclude in August 2003. See Status Report at 2, CFGC, ECF No. 121. Despite this agreed-upon discovery cutoff-which apparently was never enforced-discovery continued during the dispute over plaintiffs' motion to compel deposition testimony of selection board members and their subsequent constitutional challenge to 10 U.S.C. § 618(f). See Status Report at 2-3, CFGC, ECF No. 182 (noting that by February 2005, both parties had deposed several additional witnesses); Status Report, CFGC, ECF No. 178 (noting that between November 2002 and January 2004, plaintiffs had served their first round of document requests and deposed six witnesses). The Court stayed discovery "informally" in July 2009, and in mid-2012 Judge Kessler continued the stay based on the Navy's representation that it intended to file a dispositive motion. See Pls.' Discovery Mot. at 5. In January 2018, this Court again continued the discovery stay, advising the parties that it would consider plaintiffs' requests for additional discovery once the parties' summary judgment motions were fully briefed. See Jan. 11, 2018 Order.

In short, discovery in this case-which the parties initially agreed would take only nine months-was open for a period of several years between 2002 and 2009. Plaintiffs are correct that discovery was "conducted on and off" during this period, Pls.' Reply Mem. of P. & A. in Supp. of Pls.' Mot. to Lift the Discovery Stay [ECF No. 268] at 6, and that significant other proceedings took place during that time. They are also correct that they were never formally put on notice that the 2009 discovery stay would later become permanent. See In re Navy Chaplaincy, 287 F.R.D. 100, 102 (D.D.C. 2012) ("Parties must remember that discovery has been stayed only, and no cut-off date for its completion has been set. I