Chalker v Gates, the lawsuit which pitted the MRFF and an atheist Soldier against the Department of Defense, has been dismissed.  The case was brought by Michael Weinstein of the Military Religious Freedom Foundation and US Army Specialist Dustin Chalker.  The primary complaint was that Chalker was forced to attend formations at which Christian prayers were given, though Weinstein used the lawsuit as a forum to accuse the military of promoting Christianity.

According to various reports,

US District Judge Kathryn Vratil ruled Thursday that Chalker failed to exhaust all available remedies before filing suit.

Weinstein has said he will appeal the decision.

The ruling that dismissed the lawsuit (pdf) is slightly more complex than the media summary.  The ruling stated: 

The Court finds that plaintiffs’ claims are nonjusticiable because plaintiffs did not exhaust intramilitary remedies and finds that this case should be dismissed for lack of jurisdiction.

The first part of the ruling has been frequently discussed on this site; if a plaintiff does not exhaust the opportunities available to him in the military, the courts will not intervene.

The second part of the ruling appears to be related to the first.  In essence, it appears the court weighed Chalker’s unsupported claims against the DoD’s affidavits (which the MRFF did not refute), agreed that Chalker had not exhausted his remedies (despite his assertions that he had), and therefore concluded that it did not have subject matter jurisdiction over a matter the military had not had an opportunity to resolve.

To expand, in the Department of Justice’s Motion to Dismiss, the government provided affidavits that directly contravened the plaintiff’s assertion that he had exhausted–or even used–the military’s internal grievance system.  In its “Decisive Response,” the MRFF failed to provide any evidence to oppose the DoJ sworn statements.  The court highlights this legal misstep:

Plaintiffs provide no evidence to refute defendant’s affidavits. Instead, plaintiffs argue that for purposes of this motion, the court “must accept all well-pleaded allegations in the complaint as true.” Plaintiffs ignore the fact that defendant brings this motion under Rule 12(b)(1), which permits the court to review affidavits and other factual submissions to resolve disputed jurisdictional facts.

When the MRFF tried to say it was “futile” to use the military system, and thus Chalker should not be held to that requirement, the court also took them to task:

Chalker has provided no evidence of even one instance where he was denied intramilitary relief, or when he could not receive timely relief through that process.

In retrospect, of course, that statement is redundant.  Since Chalker and the MRFF never provided any evidence that he used the systems, it is logical that they would thus be unable to provide any evidence of that system failing to provide timely relief.

Since Chalker provided no evidence that he used the military processes, and since he failed to refute the sworn statements saying he hadn’t, the court agreed with the DoJ that he had not.  That made his case nonjusticiable under precedent, and eliminated the court’s jurisdiction.

The charge that the plaintiff did not utilize the military grievance system has been identified since the beginning, and because of judicial precedent, it was nearly a silver bullet.  In the original iteration of this lawsuit, PFC Jeremy Hall sued almost immediately after his alleged mistreatment, making it obvious he had not used the military’s internal systems to address his grievances.  When Weinstein filed the Chalker lawsuit (and abandoned the Hall one), it was speculated that the reason he did so was to utilize a ‘better plaintiff.’  As noted previously:

Unlike the first lawsuit, it does say that the primary plaintiff, Specialist Dustin Chalker, sought permission not to attend the events through “his chain of command and the equal opportunity process,” which did not yield “satisfactory results.”

After it began to emerge that Chalker may not have actually used the military processes, it appears he may have attempted a do-over: he filed an Equal Opportunity complaint after filing the lawsuit.  Ironically, he filed the EO complaint after receiving the accommodation he requested.

This is the third lawsuit Weinstein has filed that has been dismissed before going to trial. (In fact, no MRFF lawsuit has survived a motion to dismiss.)  The dismissal of this lawsuit leaves Weinstein v Ammerman as the only outstanding Weinstein litigation (though he has threatened others), and motions to dismiss have already been filed there as well.  Since he failed to follow through on his promise to “re-file [his first] lawsuit as quickly as possible,” it will be interesting to see if he does indeed appeal.