Petition for Writ of Certiorari — Chaplaincy of Full Gospel Churches v. England
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(! reme Ceurt, U.S.
SPE D
In The Se
Supreme Court of the amiss States
CHAPLAINCY OF FULL. GOSPEL CHURCHES, ET AL.,
AND ROBERT H. ADAIR, ET AL.,
Petitioners,
GORDON R. ENGLAND,
SECRETARY OF THE NAVY, ET AL.,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the
District of Columbia Circuit
PETITION FOR WRIT OF CERTIORARI
John W. Whitehead Arthur A. Schulcz, Sr.
Douglas R. McKusick Affilliated Attorney with
THE RUTHERFORD INSTITUTE The Rutherford Institute
Post Office Box 7482 2521 Drexel Street
Charlottesville, Virginia 22906 Vienna, Virginia 22180
(434) 978-3888 (703) 645-4010
Of Counsel Counsel of Record
Date: December 20, 2004
——————————
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477
ite
QUESTIONS PRESENTED FOR REVIEW
I. Whether Congress intended 10 U.S.C. § 618(f) to bar
discovery into constitutional and statutory violations
in military promotion board proceedings.
Il. Whether Congress may bar discovery into
constitutional violations of the Navy’s promotion
procedures and thereby extinguish chaplains’ claims
of constitutional violations.
Il. Whether strict scrutiny applies when the Sovereign’s
authority to grant or deny government benefits to faith
group representatives is delegated to other faith group
representatives on loan from their faith community
(i.e., chaplains) and there are no guarantees that the
Sovereign’s authority will be used for neutral, secular
and non-ideological purposes.
ft.
PARTIES TO THE PROCEEDINGS
The Petitioners, who were Plaintiffs-Appellees in the
Court of Appeals, are The Chaplaincy of Full Gospel
Churches, Martha Carson, Mark Johnston, Klon K. Kitchen, Jr.,
Denise Merrit, Duane Purser, Dan Roysden, Mary Helen
Spalding, Barby Wilson, Robert Adair, Michael Belt, Gregory
De Marco, Furniss Harkness, Michael Lavelle, George Linzey,
Timothy Nall, Thomas Rush, James Weibling, Michael Wright,
Richard Hamme (formerly John Witherspoon, a pseudonym),
William Blair, Larry Farrell, Raphael Quiles, Lyle Swanson,
Ronald Tomlin, and David Wilder. The individual Petitioners
are current, former or retired Navy chaplains whom the Navy
categorizes as “non-liturgical.” See Glossary.
The Respondents, who were Defendants-Appellants in
the Court of Appeals, are the United States Navy and the
following persons in their official capacity: Gordon England,
Secretary of the Navy (the “Secretary”); Vice Admiral Gerald
L. Howeing, Chief of Naval Personnel; Rear Admiral Louis V.
lasiello, Chief of Chaplains, and Rear Admiral Robert F. Burt,
Deputy Chief of Chaplains.
CORPORATE DISCLOSURE STATEMENT
The Chaplaincy of Full Gospel Churches (hereafter
“CFGC”) is an agency established to endorse chaplains from
Christian Charismatic, non-denominational churches,
fellowships, and associations. CFGC is a 28 U.S.C. § 501(c)(3)
organization and a subdivision of Ammerman Trinity
Ministries, Inc., a corporation organized and registered under
Texas law. Neither Ammerman Trinity Ministries, Inc. nor
CFGC is a corporation whose stock is publicly traded.
—
-iii-
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW .............. i
PARTIES TO THE PROCEEDINGS .................... ii
TABLE OF AUTHORITIES CITED ...............00000. v
CITATIONS OF ORDERS AND OPINIONS ............ 1
STATEMENT OF JURISDICTION ..................05. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS .. 1
DEP Temes COP TIME CAGE oon cc cccccccccccccccccces 2
I.
Il.
il.
IN RE ENGLAND CONFLICTS WITH THIS
CAPRRE OPENED ovdcndvccacccesdécscnss 7
IN RE ENGLAND CONFLICTS WITH OTHER
ee PEE wknd eudcawscenescdeckeve 19
IN RE ENGLAND’S HOLDING IGNORES THE
RULES OF STATUTORY CONSTRUCTION ..... 20
IN RE ENGLAND’S HOLDING UNDERMINES
IMPORTANT NATIONAL POLICIES .......... 21
SUPREME COURT DIRECTION AND GUIDANCE
ON STRICT SCRUTINY IS NEEDED ........... 23
EE xia ans 4 as Knee deh ueaa Saw aeneeaes 26
-iv-
APPENDIX
Decision of the United States Court of Appeals in
In re England ........0..ceeee cere cece eeeeneeeenees A-1
Order of the United States Court of Appeals Denial
of Petition for En Banc Review .........++++0++e008: A-24
Order of the Court of Appeals amending its order denying
the Petitioners’ Petition for Rehearing En Banc ...... A-25
Opinion and judgment of the District Court for the District
of Columbia granting the Petitioners’ motion to
compel discovery, Chaplaincy of the Full Gospel
Churches v. Johnson, 217 F.R.D. 250 (D.D.C. 2003) ...... A-26
Opinion of the District Court for the District of Columbia
denying in part and granting in part Respondents’
motion to dismiss, Adair v. England, 183 F. Supp.
2d 31 (D.D.C. 2002)... 2. cece eee cence eee eee ees A-47
10 U.S.C. § 618 Action on reports of selection boards . A-109
EXHIBITS IN SUPPORT OF MOTION TO COMPEL
Declaration of Gary Paul Stewart ..........----++--- A-113
Declaration of Klon K. Kitchen, Jr. ..........----45- A-115
Affidavit of Floyd Cedric Ellison .........--+++++-- A-117
Declaration of Gary Paul Stewart (Supplemental) .... A-120
June 13, 2001, Southern Baptist Convention Resolution
No. 7 on Discrimination A, :inst Military Chaplains . A-122
8 AUGUST 2001 Associated Gospel Churches Resolution
Regarding Alleged Religious Discrimination Against
Military Chaplains Serving in the U.S. Navy ........ A-125
Glossary ..........c cece cece eee ence eeeeeeeeee A-127
-v-
TABLE OF AUTHORITIES CITED
FEDERAL CASES
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) .... 16, 20
Adair v. England, 183 F. Supp. 2d 31 (D.D.C. 2002) .. 1, 23, 25
Adair v. England, 209 F.R.D. 5 (D.D.C. 2002) ............- 2
Adair v. England, 217 F.Supp.2d 7 (D.D.C. 2002) ........ 5, 7
Adair v. England, 217 F.R.D.250 (D.D.C. 2003) .......... 18
Aderand Constructors Inc. v. Pena, 515 U.S. 200 (1995) ..... 5
Baldridge v. Shapiro, 455 U.S. 345 (1982) ........--+000+ 19
Barlow v. Collins, 397 U.S. 159 (1970) .........--eeee 9,21
Bd. of Education of Kiryas Joel v. Grummet,
512 US. 57 (1998) . 00. cwcccsccccvesiessccessasseses 24
BE & K Construction Co. v. N.L.R.B., 536 U.S. 576 (2002) .. 17
California Motor Transport Co. v. Trucking Unlimited,
404 US. 508 (1972) 0.0.2 ccc ceccccsccssnccccscscssces 17
Cannon v. University of Chicago, 441 U.S. 677 (1979) ...... 21
Chaplaincy of the Full Gospel Churches v. Johnson,
276 F. Supp.2d 82 (D.D.C. 2003) ..... 6. eee eee eee eee eee 3
Chaplaincy of the Full Gospel Churches v. Johnson,
217 F.R.D. 250 (D.D.C. 20038) ......cccccessccccecccees 26
Christian v. United States, 337 F.3d 1338 (Fed. Cir.),
cert denied, 124 S.Ct. 1576 (2004) ........ cece eee ee eees 10
-vi-
City of Boerne v. Flores, 521 U.S. 507 7) ee 19
City of Littleton, Colo. v. Z. J. Gifts D-4, LLC, _ US. _.
124 S.Ct. 2219 (2004) ... 22. c cece eee e cere ener eeeeeeees 24
Clay v. United States, 537 U.S. 522 (2003) ......+-++++- 8, 21
Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632 (1974) ....... 25
Colautti v. Franklin, 439 U.S. 379 (1979) ......0-00eeee eee 8
Committee for Public Education v. Nyquist,
GID UB. FOB ccccccccccsccccssccccsccsacessseuces 23, 24
(1973)
Conley v. Gibson, 355 U.S. 41 (1957) ....--- +. essere eee 25
County of Allegheny v. ACLU, 492 U.S. 593 (1989) ......-- 23
Department of Air Force v. Roe, 425 U.S. 352 (1975) ....--. 22
Elkins v. United States, 364 U.S. 206 (1960) ........--+-- 14
Emory v. Secretary of Navy, 819 F.2d 291 (D.C. Cir. 1987) .. 10
Fluellen v. United States, 225 F.3d 1298 (Fed. Cir. 2000) ... 10
Freeman v. Seligson, 405 F.2d 1326 (D.C. Cir. 1968) ....... 20
Hickman v. Taylor, 329 U.S. 495 (1946) ....----+eeeeees 14
Hudson v. Palmer, 468 U.S. 517 (1984) ...... 06-22 ee eee 17
In re England, 375 F.3d 1169 (D.C. Cir. 2004) .......-+-+-- 1
In re Nelson, 873 F.2d 1396 (11th Cir. 1989) .....----+++: 19
Jaffe v. Redmond, 518 US. 1 (1996) ....----s.eeeeeeeeeee 15
a **
—
Jicarilla Apache Nation v. United States,
GO FOGAD, GET GID] oc ccccccccscccccccccccccccscccse 19
Johnson v. Robison, 415 U.S. 361(1974) ............00000. 19
Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985) ............. 2
Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982) ...... 22, 25
Loven v. Valente, 456 U.S. 228 (1982) ..........22405- 5, 22
Lemon v. Kurtzman, 403 U.S. 602 (1971) ............05. 25
Lucas v. Forty-fourth General Assembly of Colorado,
Ath wt). | PP PPrrrrrrrrr TT rrr rrerrerrrr rrr 18
Nyeholt v. Secretary of Veterans Affairs,
296 F.3d TSO (Ped. Cie. BOGE) wii ccc cvecccccsccccsess 19
Perrin v. United States, 444 U.S. 37 (1979) ...........2545: 9
Pierce County, Wash. v. Guillen, 537 U.S. 129 (2003) ...... 15
Porter v. United States, 163 F.3d 1304 (Fed. Cir 1998),
cert. denied, 528 U.S. 809 (1999) ............2245- péunus 8
School Board of Abington Township v. Schempp,
SPS UB. TIBI on ac cccccndesecescncannnssvcssases 26
St. Regts Paper Co. v. United States,
BER UD. Fie POD oc oc ccccccgeveccccccnsscccose 9, 13, 16
Stanley v. Illinois, 405 U.S. 645 (1972) ..........2+-2005- 25
Steffel v. Thompson, 415 U.S. 452 (1974) .............. 21, 22
Trammel v. United States, 445 U.S. 40 (1980) ............. 14
U.S. v. Ron Par Enterprises, 489 U.S. 235 (1989) ........... 7
-Viii-
United States v. Bryan, 339 U.S. 323 (1950) .............. 13
United States v. Nixon, 418 US. 683 (1974) ............6. 14
United States v. Proctor and Gamble Co.,
BOO Ce CE es ced an ddcdssddeisccsssoseiecsades 14
United States v. Reynolds, 345 U.S. 1 (1982) .......... 13, 14
United States v. U.S. District Court for So. Dist. of Cal.,
S06 P3G TA02 (9Gs Cie. DODGE) ow wc ccccccccscccccccese 7,19
University of Pa. v. E.E.0.C., 493 U.S. 182 (1990) ...... 14,15
Washington v. Davis, 426 U.S. 219 (1976) ............. 7,17
Webster v. Doe, 486 U.S. 592 (1988) ............. eee eee 16
lg RP ee 19
Zambrano v. INS, 972 F.2d 1122 (9th Cir. 1992),
rev'd on other grounds, Reno v. Catholic Social Services,
POE CRP Hos harnsbixdnanntseuencésenéswaeens 19
FEDERAL STATUTES
OO a ahs eee a ee 2
i a ei aaa 7,8, 20
nk SO REPO R Dente aa ye 23
ie NOE i eG 17
WN AM ei i a a ee 1
DOr as UE hn 6 Rea cab rch caw ncuads Cenusans passim
OR Re eo 26
i Ce oe 26
i Ce a ei eee 15
ee Oe ERE ee re ee PUR ee RE 16
i ee ei ree 1
UAE AOE 05. oa 2
raat REE eB ROBE RARER Comme y Ai 2
i ii os ica, 2
ne BNE si eRe 3
BORO eee 13
URE CO oie 13
OTHER AUTHORITIES
Defense Officer Personnel Management Act of 1980 ..... 8
Federal Hazard Elimination Program, 23 U.S.C. § 152 ... 15
Federal Rule of Evidence MUP ETCRVO CEPT TTT rer erry 14
Religious Freedom Restoration Act,
$2 UDA. Fp POO ED, occ cc ckdsnnsccesincessccaws 3
Secretary of Navy Instruction 1401.3, encl., 9 1.C.1. ... 3,23
1980 U.S. Code and Cong. Admin. News 6333, 6337-39. 8,9
Senate Report 102- 482 .......0..... sees ee eee eens 22
The Senate Armed Services Committee’s 1992 “Report -
on the Conduct of Proceedings for the Selection of
Officers for Promotion in the U.S. Air Force.” .......... 10
Ce ee ee ee
ie.
CITATIONS OF ORDERS AND OPINIONS
The opinion and judgment of the United States Court
of Appeals for the District of Columbia is reported as In re
England, 375 F.3d 1169 (D.C. Cir. 2004) and is set forth in the
Appendix beginning at A-1. The orders of the Court of
Appeals for the District of Columbia denying the Petitioners’
Petition for Rehearing En Banc and amending that order are
not reported and are set forth in the Appendix at A-26and A-
27, respectively.
The opinion and judgment of the District Court for the
District of Columbia granting the Petitioners’ motion to
compel discovery is reported as Chaplaincy of the Full Gospel
Churches v. Johnson, 217 F.R.D. 250 (D.D.C. 2003) and is set
forth in the Appendix beginning at A-28. The opinion of the
District Court for the District of Columbia denying in part and
granting in part Respondents’ motion to dismiss is reported as
Adair v. England, 183 F. Supp. 2d 31 (D.D.C. 2002) and is set
forth in the Appendix beginning at A-51.
STATEMENT OF JURISDICTION
The judgment for which review is sought was entered
by the Court of Appeals for the District of Columbia on july
27, 2004. The Petitioners timely filed a Petition for Rehearing
En Banc in the Court of Appeals on September 7, 2004. The
Court of Appeals denied rehearing in a per curiam order
entered September 21, 2004. By an order entered October 4,
2004, the Court of Appeals amended the September 21, 2004
order to make that order applicable to both cases. This Court
has jurisdiction over this Petition pursuant to 28 U.S.C. § 1254.
CONSTITUTIONAL AND STATUTORY PROVISIONS
This case involves the construction of 10 U.S.C. § 618,
“ Action on Reports of Selection Boards,” which is set forth in
eee eee eee
-2-
the Appendix beginning at A-121. Section 618(f), at issue here,
provides “[e]xcept as authorized or required by this section,
proceedings of a selection board convened under § 611(a) of
this title may not be disclosed to any person not a member of
the board.”
STATEMENT OF THE CASE
This case involves consolidated actions filed in the
District Court for the District of Columbia. One action was
brought by CFGC, a non-liturgical Christian chaplain
endorsing agency, and eight of its Navy chaplains. The other
action was brought by 17 other non-liturgical chaplains on
behalf of themselves and a class of Navy non-liturgical
chaplains. See Adair v. England, 209 F.R.D. 5 (D.D.C. 2002) |
(approving class certification). The District Court
consolidated the cases for the purpose of pretrial motions. :
The District Court had jurisdiction over these actions under 28
US.C. §§ 1331, 1343 and 1346, and 5 U.S.C. § 702.
Petitioners’ complaints alleged that the Navy Chaplain
Corps has discriminated against them and the class in
promotions, accessions, and career opportunities by favoring
Catholic and liturgical Protestant chaplains in violation of the
First and Fifth Amendments’ and the Religious Freedom
~
' Petitioners argue the only time that Respondents may consider
denomination is in chaplain accessions so the Chaplain Corps meets the
Navy’s Free Exercise needs. Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir.
1985). Constitutional justification for military chaplains is “not to deprive
the soldier of his right under the Establishment Clause not to have his
religion inhibited [due to military circumstances] and of his right under
the Free Exercise Clause to practice his freely chosen religion.” Id. at 231.
The right of Free Exercise is personal to the individual, id. at 228, 232, 234
(explaining soldier’s right to practice his freely chosen religion) id. at 225-
26 (Army established chaplain quotas based on religious demographics).
Since promotion is based on ability to supervise and other neutral,
secular military criteria, denomination is a forbidden promotion factor.
Compare id. at 226 (Army chaplain’s promotion based on military
performance and not on his effectiveness as a cleric).
3
Restoration Act (“RFRA”), 42 U.S.C. §§ 2000-bb, et seq. CFGC
began endorsing chaplains in the Navy and Army in 1984 and
in the Air Force in 1990. While its Army and Air Force
chaplains have done well in those services, when CFGC filed
its Complaint, none of its 32 Navy chaplains had been
promoted to Commander and only seven to Lieutenant
Commander.
Under 10 U.S.C. § 612, promotion boards must have'at
least five officers, one of whom is in the category under
consideration. Secretary of Navy _ Instruction
(“SECNAVINST”) 1401.3, encl., 1.C.1. requires the board be
composed of chaplains and one line officer. A Naval Inspector
General (“NIG”)’s investigation into the FY 2000 Chaplain
Captain promotion board described the voting procedure.
Each member, in secret, votes a confidence level for selection
from 0 to 100, in increments of 25. Since a combined score of
100 is needed for selection, a single vote of “0” ensures that the
candidate will not be selected.”
Petitioners challenge the Navy’s chaplain promotion
practice and policies of: (1) always having a Catholic selection
board member (i.e., a Catholic reserved seat), (2) the
identification of each chaplain’s faith group to the board
members, (3) the use of faith group as a factor in determining
who is retained or promoted rather than the chaplain’s
military record, (4) the influence of the Chief of Chaplains or
his Deputy in approving chaplain board members and as
President of the selection boards, (5) stacking promotion
boards with chaplains from the liturgical tradition (Catholic
and liturgical Protestant), and (6) the delegation of the
Sovereign’s power to “denominational representatives” (i.e.,
2 The NIG concluded that a female Chaplain board member had illegally
“zeroed out” a female chaplain candidate because the board member
disagreed with the candidate’s view of women in the military.
re
— |
chaplains) in awarding, withholding and terminating
government benefits (i.e., Navy promotions and careers).
Pages 3 and 4 of the Department of Defense
Inspector General (“DODIG”) investigation into the FY 97
and 98 Chaplain Commander promotion boards (the DODIG) -
were the Adair Complaint’s Exhibit 6. The DODIG found
that denominational consideration “may have been a factor in
the final selection made by the FY 97 board (after several
votes, a Roman Catholic was picked over a Baptist),” DODIG
at 3, and “we found some evidence that denominational
considerations may have been a factor in selections made by
the FY 98 board.” Id. at4. Opposing Respondents’ motion to
dismiss, Petitioners provided as exhibits the NIG and DODIG
investigations into the FY 97 and 98 Chaplain Commander
. promotion boards and their interviews. The exhibits clearly
showed denomination had influenced the selection of
chaplains on the FY 97 and 98 boards, supporting Petitioners’
assertion. For example, in Exhibit 7, Rear Admiral Holderby,
President of the FY 97 board, admitted to the NIG that the
board selected a priest with a poor record, rather than
“another chaplain with a perfect record,” because of
denominational considerations after a priest board member’s’
“impassioned plea.”
Denying Petitioners’ request to treat their Opposition
as a summary judgment motion and consider the exhibits, A-
102, the District Court dismissed Petitioners’ claim that
allowing chaplains to exercise the sovereign’s power on
promotion boards or allowing chaplains to rate other
chaplains raised First Amendment concerns. Rather than
evaluate the implications of Exhibit 6 and the proffered
evidence, the District Court applied the presumption of
regularity to chaplains as board members, A-104, and held
“the plaintiffs’ assertion that chaplains will necessarily.
discriminate against other chaplains on the basis of religion is
an unsupported allegation that is not sufficient to state a claim
for a First Amendment violation.” A-105. It went on to hold
5.
that because “Navy chaplains are first and foremost Naval
officers ... when they sit on promotion boards, they act as
officers,” not as denominational representatives.” A-107, 108
Petitioners subsequently argued in partial summary
judgment (PSJ) that the Navy’s practice of identifying each
chaplain’s faith group to the board members was subject to
strict scrutiny under Aderand Constructors Inc. v. Pena, 515 U.S.
200, 227-28 (1995) (use of forbidden classifications analyzed
- under strict scrutiny). The District Court denied Petitioners’
PSJ, holding that under Larsen v. Valente, 456 U.S. 228, 246-47
(1982) strict scrutiny applied only after Petitioners showed
favoritism in board proceedings. Adair, 217 F.Supp.2d 7, 12-15
(D.D.C. 2002) (denying PSJ). “[I]f the plaintiffs can demonstrate
after discovery that some or all of the Navy’s policies and
practices suggest a denominational preference, then the court
will apply strict scrutiny to those policies and practices for
which plaintiffs have met this initial burden.” Id. at 14-15
(emphasis added).
To pursue evidence of religious prejudice and
favoritism in board proceedings and document the impact of
identifying each chaplain’s denomination to the chaplain
board members, as required by the District Court’s Order,
Petitioners asked the Secretary of Navy to release chaplain
board personnel from the oath of secrecy he requires of all
selection board personnel. This oath is enforced by the
Uniform Code of Military Justice. The Secretary refused,
relying upon the provisions of 10 U.S.C. § 618(f). Petitioners
filed a motion to compel, supported with declarations from 1)
board personnel stating they had relevant evidence of
promotion board misconduct, (e.g., A-125-26), and 2) chaplains
who had been told of religious prejudice by board members.’
“Two 1996 Captain Chaplain selection board members described to other
chaplains how the board (1) reconvened after it had adjourned in
response to the Catholic board member's complaint that no Catholic had
been selected and (2) deselected a Protestant to select the Catholic
suggested by the Catholic board member. A-127-131.
-6-
Other evidence of promotion board misconduct came from
the DODIG and NIG. The District Court granted the motion,
relying on D.C. Circuit precedents. A-35-48. “It is hard to
argue that the testimony of former selection board personnel
with direct knowledge of board proceedings is not ‘relevant’
and ‘reasonably calculated to lead to the discovery of
admissible evidence’ regarding alleged Navy discrimination
against non-liturgical chaplains in those very proceedings.” A-
37. The District Court concluded that Petitioners “have
provided an adequate factual basis for their belief that the
requested testimony will provide evidence of government
misconduct.” A-41. To protect the Respondents’ interests in
frank and candid discussions, the District Court directed the
parties to “jointly provide” a discovery plan. A-49.
Respondents appealed under the collateral order exception
and filed a petition for mandamus. Id. at A-10.
The Court of Appeals (a) reversed, holding that the
phrase “may not disclose” in 10 U.S.C. § 618(f) was the
language of command barring discovery of board
proceedings, A-22, and, (b) although recognizing that a
chaplain was “a professional representative of a particular
denomination,” A-4, denied Petitioners’ request to review
under collateral appellate jurisdiction the District Court's
finding that (1) chaplain board members served as officers, not
denominational representatives, and (2) no First Amendment
concerns arose from delegating the Sovereign’s power to these
particular “denominational representatives” acting as chaplain
selection board members. Id. at A-2. Petitioners’ request for
rehearing en banc of the panel’s decision was denied on
September 21, 2004. A-26.
REASONS FOR ALLOWING THE WRIT
As shown below, the D.C. Circuit decided an
important question of federal law that is in conflict with the
relevant decisions of this Court, undermines important federal
policies, and raises constitutional issues. The challenged
a
a
-7-
decision is also in conflict with decisions of the Courts of
Appeals for the Ninth, Eleventh, and Federal Circuits on the
same or similar issue. In fact, In re England conflicts with a
decision on the very same issue rendered in the U.S. District
Court for the Southern District of California allowing an
involuntarily retired chaplain alleging religious discrimination
to depose personnel who sat on the chaplain’s selection board,
notwithstanding the provisions of 10 U.S.C. § 618(f)). The
Ninth Circuit denied the Respondents’ interlocutory appeal
and petition for a writ of mandamus to review the district
court’s order. United States v. U.S. District Court for So. Dist. of
Cal., 384 F.3d 1202 (9" Cir. 2004). In re England’s departure
from the accepted course of judicial proceedings and relevant
decisions of this Court warrant an exercise of this Court's
supervisory power.
I. IN -RE ENGLAND CONFLICTS WITH THIS
COURT’S PRECEDENTS
In holding that 10 U.S.C. § 618(f) barred discovery
‘ from promotion board personnel, the Court of Appeals
effectively barred Petitioners’ Fifth Amendment claims, see
Washington v. Davis, 426 U.S. 219, 239-40 (1976) (plaintiff must
show invidious discrimination to establish a governmental
Due Process violation), First Amendment claims, see Adair, 217
F.Supp.2d at 14-15 (chaplains must show illegal preference in
board proceedings), and RFRA. This decision clearly conflicts
with this Court’s precedents.
A. A Statute Must Be Interpreted to Give Effect
to All Its Provisions
The Court of Appeals’ interpretation of 10 U.S.C. §
618(f) is contrary to 10 U.S.C. § 101(f)’s “Rules of
Construction.” This violates the rule that courts are to
interpret statutes in a manner that gives effect to every
provision, the intent of Congress, and does not lead to absurd
results. U.S. v. Ron Par Enterprises, 489 U.S. 235, 242 (1989).
-8-
The statute at issue here, 10 U.S.C. § 618(f), was part of
the Defense Officer Personnel Management Act of 1980
(DOPMA). It was the result of six years of congressional
efforts to reform the military officer personnel management
system and make officer promotions more fair and equitable.
1980 U.S. Code and Cong. Admin. News (USCCAN) 6333,
6337-39. .DOPMA’s major components were thoroughly
covered and explained in its legislative history. Porter v.
United States, 163 F.3d 1304, 1313 (Fed. Cir. 1998), cert denied,
528 U.S. 809 (1999).
The Court of Appeals’ finding that § 618(f)’s “may not
be disclosed” is the language of command, A-15, is
inconsistent with 10 U.S.C. § 101(f)’s contrary command which
states in pertinent part:
(f) Rules of construction.— In this title -
(1) “shall” is used in an imperative sense;
(2) “may” is used in a permissive sense;
(3) “no person may * * *” means that no
person is required, authorized, or permitted to
do the act proscribed[.]
Congress not only defined the interpretation of “may” in §
618(f), but also provided other specific language in § 101(f)(3)
to signify when it intended an absolute prohibition on
disclosure. “As a rule, ‘a definition which declares what a
term means ... excludes any meaning that is not stated.’”
Colautti v. Franklin, 439 U.S. 379, 392 n.8 (1979) (citations
omitted).
Had Congress intended § 618(f) to be an absolute bar
to any type of disclosure, it would have used prohibitive
language. An absolute bar in § 618(f) consistent with §
101(f)(3) would read “no person may disclose the proceedings
of a selection board ...”, but that is not the language Congress
put in § 618(f). The omission is presumed to be intentional and
purposeful. Clay v. United States, 537 U.S. 522, 528 (2003).
-9-
Since Congress did not use § 101(f)(3)’s mandatory prohibition
language, the words it did choose, “may not be disclosed,”
must be interpreted in § 101(f)(2)’s “permissive sense” and in
the context of a narrow interpretation to preclude the
suppression of competent evidence as required by St. Regis
Paper Co. v. United States, 368 U.S. 208, 218 (1961). This means
that disclosure is presumed, but the Secretary has authority
not to disclose it. This interpretation (1) is consistent with “the
presumption that judicial review of executive decisions is the
rule, and nonreviewability an exception which must be
demonstrated,” Barlow v. Collins, 397 U.S. 159, 166 (1970); (2)
is consistent with Congress’ well-established oversight role in
investigating and correcting misconduct or bias in promotion
board proceedings, see B below; (3) shows Congress’ intent
that board misconduct be exposed and corrected as required
by the Constitution and Federal Court precedent at the time
DOPMA was passed, and; (4) avoids constitutional questions.
The Court of Appeals does not have authority to
change Congress’ choice of words or their meaning. Shielding
prejudice from judicial review also conflicts with and
undermines DOPMA’s objectives. 1980 USCCAN at 6337-39.
Denying constitutional claims and restricting the right to seek
redress are other absurd results. See B-D below.
In re England’s holding is also absurd because it
construed the word “proceedings” in a very narrow sense to
mean only “deliberations,” the specific issue before it. A-22.
However, in § 618(f) Congress used “proceedings”, which has
a much broader context and includes all of the processes,
beginning with the decision to hold a selection board and
ending with the release of the board results. In re England's
narrow interpretation conflicts with the rule that words not
specifically defined must be given their common usage. Perrin
v. United States, 444 U.S. 37, 42 (1979). The D.C. and Federal
Circuits and the Court of Federal Claims would seem to have
violated § 618(f) by their consistent responses to officers’
challenges to various previous selection board proceedings.
-10-
For example, an African-American Naval Reservist alleged the
proceedings of a Rear Admiral selection board denied him fair
consideration in Emory v. Secretary of Navy, 819 F.2d 291 (D.C.
Cir. 1987). “The Court of Federal Claims held that the
proceedings by which an Army board recommended the
involuntary retirement of certain Army officers were
constitutionally invalid because of instructions by the
Secretary of the Army that the Board give minority and female
officers preferential treatment.” Christian v. United States, 337
F.3d 1338, 1339 (Fed. Cir.), cert denied, 124 S.Ct. 1576 (2004)
(emphasis added). Fluellen v. United States, 225 F.3d 1298,
1300-01 (Fed. Cir. 2000), rejected an Air Force officer’s
challenge to the use of panels to determine promotions.
Nothing in DOPMA suggests a narrow reading of the word
“proceedings.”
B. = In re England Would Bar Congress’ Oversight
Investigations Into Promotion Board
Misconduct
In re England's conclusion that § 618(f) “categorically
bars mere disclosure to anyone not a member of the
promotion selection boards,” A-21, rested on its finding that
Congress’ words in § 618(f) provide no exception to a bar on
disclosure. Id. at A-15. This “no exception” holding_also
precludes Congress from reviewing or investigating selection
board proceedings. This is not only absurd but raises a
constitutional question, see F infra, due to the separation of
powers. Would Congress abdicate its constitutional
responsibility to oversee and investigate the officer promotion
and selection proceedings without any explanation or
justification in DOPMA? Congress certainly has not
understood that it had abdicated its oversight responsibilities.
Senate Report 102- 482 (the “Report”) sets forth the
Senate Armed Services Commuttee (SASC)’s 1992 “Report on
the Conduct of Proceedings for the Selection of Officers for
Promotion in the U.S. Air Force.” It publicly reports on the
SASC’s investigation into misconduct in officer selection
Ain
board proceedings, “serious and systematic deficiencies in the
procedures used by the Air Force to recommend officers to
general officer positions.” Id. at 1. The Report contradicts In
re England in numerous ways. First, Congress asked for
information directly related to selection board deliberations,
and the Air Force and DOD responded. Id. at 1-2. If § 618(f)
were an absolute bar to disclosure, DOD and the Air Force
could have refused to provide such information to Congress
and Congress would have been unable to obtain information
required for its constitutional oversight function. The Report
would have mentioned the services’ waiver of § 618(f) if it
were a bar.
Second, the Report emphasized that the “fair and
impartial conduct of the selection process is a matter of great
concern to the Cominittee. The integrity of the selection
process is essential to the integrity of the officer corps.” Id. at
1. In the context of the Report, this is in stark contrast to
Secretary England’s declaration concerning the importance of
hiding misconduct from discovery, A-12, 17, showing the
Respondents’ position is without foundation and contrary to
the public interest. If Congress were concerned enough about
“the integrity of the selection process” to bring board
misconduct and board discussions into the public view, it
follows that courts should also be concerned when allegations
of unconstitutional misconduct are surfaced. The courts’ role
as guardians of the Constitution parallels Congress’ oversight
role.
Third, the Report also described the Senate’s earlier
investigation of impropriety in a Marine Corps selection board
that “involved verbal communications by the Secretary of the
Navy and the Commandant ... to the President of the selection
board” similar to the Air Force problem. Id. at. 3. The Report
expressed Congress’ concern in the “fairness of the selection
process” and in protecting board members from outside
influences during the selection process, id, another example of
Congress’ practice and belief that exposure of selection board
-12-
misconduct was an important public policy and interest.
Fourth, General McPeak testified about selection board
proceedings, identifying deficiencies in the system including
“liJmproper briefings of the Secretary and the Chief of Staff
[“CoS”] of the preliminary decisions of selection boards prior
to final action by the board.” Id. at 6; compare with § 618(f).
According to the In re England absolute bar theory, the General
violated § 618(f) since he revealed and discussed selection
board proceedings and deliberations. The Report identified
obvious § 618(f) violations: board results were routinely
discussed with the Secretary and non-board member CoS
before the board report was signed, id. at 12, and a board
President and the CoS discussed a Brigadier General under
consideration for selection. Id. at 12-13. The Report: (1)
emphasized the Air Force's failure “to conduct its selection
board proceedings as required by law, in a manner that
insulated board members from any communication that could
be viewed by board members as influencing them toward a
particular selection,” id. at 13; (2) specifically identified as a
potential § 618(f) violation the board access afforded the non-
board member Deputy CoS for Personnel and board members
questioning him about officers under consideration, id. at 13-
14; and (3) also identified improper communications by board
members with outside sources concerning comments in
records before the board. Id. at 15.
The Report also reveals the absurdity of In re England's
holding in the context of the Separation of Powers. Under the
Court of Appeals’ “absolute bar” theory, all military services
would be able to deny, hide or conceal from Congress the
information necessary for Congress to properly exercise its
constitutional oversight responsibilities. _ The DODIG
investigation into the FY 97 and 98 Chaplain Commander
boards acknowledges on page 7 that it was initiated by
Congressmen. Respondents must argue that Congress is an
exception to § 618(f) but the Judiciary is not. The Constitution
assigns courts a fact-finding responsibility. For the same
ry
reason that the military cannot deny Congress the information
necessary for its oversight, Respondents may not deny the
Court its proper role in controlling the evidence and
addressing alleged violations of the Constitution. United
States v. Reynolds, 345 U.S. 1, 9-10 (1982) (“judicial control over
the evidence cannot be abdicated to the caprice of executive
officers”).
C. Statutes Prohibiting Disclosure Do Not Bar
Discovery Absent Specific Language
Showing Congress’ Clear Intent
Addressing a claim for a statutory discovery privilege,
this Court has held that “[oJurs is a duty to avoid a
construction that would otherwise suppress competent
evidence unless the statute, strictly construed, requires such a
result.” St. Regis Paper, 368 U.S. at 218. “Indeed, when
Congress has intended like reports not to be subject to
compulsory process it has said so.” Id. Section 618(f) does not
have the specific language showing Congress’ intent to bar
discovery, such as “no report may be used as evidence or ...
for any purpose in any suit or action for damages [arising
from the report]” found in 45 U.S.C. § 41 and 49 U.S.C. §
320(f), which St. Regis Paper cited as. -
This Court has emphasized the fundamental nature of
the right to be able to develop evidence to vindicate individual
rights in the American adversarial system:
Testimonial exclusionary rules and privileges
contravene the fundamental principle that “the
public ... has a right to every man’s evidence.”
Linited States v. Bryan, 339 U.S. 323, 331 (1950).
As such, they must be strictly construed and
accepted “only to the very limited extent that
permitting a refusal to testify or excluding
relevant evidence has a _ public good
transcending the normally predominant
: -14-
principle of utilizing all rational means for
ascertaining truth.” Elkins v. United States, 364
U.S. 206, 234 (1960) (Frankfurter, J., dissenting).
Accord, United States v. Nixon, 418 U.S. 683,
_ 709-710, (1974).
Trammel v. United States, 445 U.S. 40, 50-51 (1980); see also
United States v. Reynolds, 345 U.S. at 1, 9-10 (“judicial control
over the evidence cannot be abdicated to the caprice of
executive officers”); United States v. Proctor and Gamble Co., 356
U.S. 677 (1958) (discussing the importance of discovery);
Hickman v. Taylor, 329 U.S. 495, 507 (1946) (same).
Before recognizing privileges, this Court requires a
showing of the balancing of competing interests. This Court's
insistence on “clear and convincing evidence” of Congress’
intent to preclude constitutional or statutory claims is
consistent with this Court’s own approach to establishing
common law privileges under its authority in Federal Rule of
Evidence 501. Privileges are in derogation of the fundamental
principle of justice that there is a right to every man’s
evidence, restrict the search for truth by limiting the rights of
discovery, and limit the right to pursue litigation to vindicate
fundamental rights. Therefore, the Court requires a clearly
defined public good before recognizing a privilege and a
careful balancing of the conflicting public concerns.
In University of Pa. v. E.E.O.C., 493 U.S. 182 (1990), the
issue was whether federal courts should recognize a “peer
review” privilege for universities and protect from disclosure
peer review documents and records of deliberations of a
plaintiff's tenure application. The evidence sought by the
E.E.O.C. and plaintiff in University of Pa. was similar to the
information Petitioners seek here - direct evidence of the
decision makers’ deliberations refusing the University’s
privilege request. This Court expressed its reluctance to
recognize a privilege “where it appears that Congress has
considered the relevant competing concerns and has not
-15-
provided the privilege itself.” Id. at 189. The Court explained:
“The balancing of conflicting interests of this type is
particularly a legislative function.” id. The important phrase
here and in University of Pa. is “balancing of conflicting
interests.” Evidence of balancing is necessary to establish that
the asserted privilege “serves important private interests” as
well as public interest. Jaffe v. Redmond, 518 U.S. 1, 11 (1996).
On one side of the balance are the fundamental right to every
man’s evidence and “the normally predominate principle of
utilizing all available means for ascertaining the truth,” id. at
9 (quoting Tramell, 443 U.S. at 50), and the duty of every
citizen to give relevant evidence to vindicate both
fundamental and statutory rights. Id. (citing United States v.
Bryan, 339 U.S. at 323, 331). On the other side are competing
public values such as national security or state secrets.
Pierce County, Wash. v. Guillen, 537 U.S. 129 (2003)
recently upheld Congress’ determination that data on traffic
accidents at specific locations collected to support funding
requests under the Federal Hazard Elimination Program (the
“Program” or “HEP”), 23 U.S.C. § 152, should be barred from
pretrial discovery and tort litigation. This Court's
examination of the Program’s legislative and statutory history
clearly showed that Congress had balanced the competing
public concerns in the light of its statutory objectives. Id. at
133-36. To encourage states and local governments to colleci
accident data without fear that the data would be used against
them in tort litigation, Congress adopted 23 U.S. § 409, which
prohibits information compiled in connection with the HEP
from being “subject to discovery or admitted into evidence in
Federal or state court proceedings ... in any action for
damages” arising from “a location addressed in the § 152
data.” Id. at 134 (quoting amended § 409). Congress clearly
defined a narrow restriction on discovery in civil litigation in
a way that protected the compelling interest in traffic safety,
while at the same time allowing plaintiffs to pursue claims by
other means. Id. at 146 (plaintiffs not any “worse off than
they would have been had § 152 funding never existed”).
——
Ab
Guillen illustrates Congress’ balancing of competing public
interests and its expression of its clear intent to create a
narrow, well- defined privilege.
In contrast to 23 U.S.C § 409’s clear language, neither
10 U.S.C § 618(f) nor DOPMA’s legislative history provide
clear and convincing evidence of Congress’ intent to restrict
judicial review or discovery. Section 618(f) has none of the
specific language which this Court cited in its previous cases,
see St. Regis Paper at 368 U.S. at 218, (citing 45 U.S.C. § 41 and
49 U.S.C. § 320(f)). In contrast to the provisions in Guillen,
which did not make plaintiffs any worse off because they were
free to obtain the necessary evidence through other means, In
re England's bar on discovery of board proceedings also bars
Petitioners’ claims because there is no other way to establish
the prejudice necessary to prove First and Fifth Amendment
violations in chaplain selection board proceedings.
D. To Bar Constitutional or Statutory Claims, A
Statute Must Show “Clear and Convincing”
Evidence of Congressional Intent
This Court has consistently held that claims of a
statutory bar to judicial review of constitutional or statutory
claims must be supported by “clear and convincing evidence
of congressional intent” to do so. Johnson v. Robison, 415 U.S.
‘ 361, 373-74 (1974) (quoting Abbott Laboratories v. Gardner, 327
US. 139, 141 (1967)). In Webster v. Doe, 486 U.S. 592 (1988), this
Court reemphasized the Johnson “heightened standard,” id. at
603, and found that language in the National Security Act
barring statutory claims did not contain the necessary
specificity to show Congress’ intent to bar constitutional
claims. Id. at 603-04. Section 618(f) has no language that
meets the Johnson/Webster standard.
This Court has consistently warned that “to deny any
judicial forum for a colorable constitutional claim” raises
constitutional issues. Webster, 486 U.S. at 603. Petitioners
-17-
argued that § 618(f)’s context, words, and placement show
Congress intended that it be a housekeeping statute,
protecting the board results between adjournment and their
public release. This position is supported by § 101(f), DOD
Instruction 1320.14 (guidance for conduct of selection boards)
citing 10 U.S.C. § 616, not § 618(f), as the legal basis for not
disclosing board proceedings, and Congress’ own
investigations into promotion board misconduct as shown in
B above. Instead, the D.C. Circuit interpreted 10 U.S.C. §
618(f) in a way which raises, rather than avoids, constitutional
issues as shown in I.C above and I.E andF below.
E. The Right to Petition for Redress Includes the
Right to Seek Judicial Review
Barring discovery into board proceedings effectively
extinguishes Petitioners’ First Amendment right to petition for
redress of constitutional violations. “The right of access to the
courts is but one aspect of the right to petition.” California
Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510
(1972). While even prisoners have this right, Hudson v. Palmer,
468 U.S. 517, 523 (1984), In re England effectively denies
Petitioners this right as to unconstitutional misconduct on
selection boards. In re England ignores this Court's
admonition that “we would not lightly impute to Congress an
intent to evade ... freedoms protected by the Bill of Rights,
such as the right to petition...” BE & K Construction Co. v.
N.L.R.B., 536 U.S. 576, 525 (2002) (citation omitted).
In re England’s comment that Petitioners remain free to
pursue their constitutional claims that arise from promotion
board misconduct without discovery, A-21, is absurd. To win
on their claims that denomination rather than military merit
was an illegal criteria for promotion, Petitioners must be able
to provide evidence of board bias. Washington v. Davis, 426
US. at 239-40. As the District Court held, this can only come
from board personnel, A-46-47, as clearly demonstrated by
Respondents’ own investigations into chaplain board
-18-
misconduct. Petitioners supported their motion to compel
with evidence of such misconduct. See note 3 supra and A-127-
131. Likewise, given the law of the case, Adair, 217 F.R.D. at
14-15, In re England effectively bars Petitioners’ Due Process
claim that the identification of each chaplain candidate's
denomination to the board members influenced the board
members’ decisions.
The DODIG and NIG investigations of Chaplain
Commander boards provide evidence that Catholics with poor
records were selected over Protestants with perfect records
because of denomination. Those boards denied promotions to
Petitioners Blair, Farrell, Lavelle, and Quiles. In re England
now denies discovery into those and other boards. A FY 92
Lieutenant Commander board recorder testifies at A-132 that
the board selected an obese priest whose record was far
inferior to others who were not selected, including Petitioner
Hamme, who had a perfect record.* The recorder is willing to
testify as to the board’s discussion leading to the selection of
the priest. Id. Absent testimony of board personnel, how do
Petitioners show that their First and Fifth Amendment rights
were violated by the board proceedings or establish the
preference required by the District Court? The subtle
processes which show denominational preference identified
by one board member to the NIG can only be established
through testimony of those who experienced it.
F. In re England Violates the Separation of
Powers
“Courts sit to adjudicate controversies involving
alleged denials of constitutional rights.” Lucas v. Forty-fourth
General Assembly of Colorado, 377 U.S. 713, 736 (1964). By
holding that § 618(f) barred discovery and judicial review of
*The recorder’s declaration was submitted as a supplement to his original
declaration, A-125-26, in requesting en banc review.
-19-
board proceedings, In re England validates an illegal transfer
of authority to declare the law and adjudicate constitutional
issues without judicial review to the Secretary of the Navy.
Congress does not have the power to do this. This Court has
consistently held that “[t]he power to interpret the
Constitution, in a case or controversy, remains in the
Judiciary.” City of Boerne v. Flores, 521 U.S. 507, 524 (1977).
Il. IN RE ENGLAND CONFLICTS WITH OTHER
COURTS OF APPEALS
The Ninth, Eleventh, and Federal Circuits require
specific language showing Congress’ intent to bar discovery
into statutory and constitutional claims. In Zambrano v. INS,
972 F.2d 1122, 1125-26 (9 Cir. 1992), rev‘d on other grounds,
Reno v. Catholic Social Services, 509 U.S. 43 (1993), the Ninth
Circuit not only required specific language to bar discovery,
but also specifically rejected In re England’s application of
Baldridge v. Shapiro, 455 U.S. 345 (1982). Id. (Baldridge involved
statutes with specific exclusion language). In a similar
chaplain’s case, Wilkins v. U.S.A., 99cv1579, the San Diego
District Court relied on Zambrano to hold § 618(f) did not bar
discovery and granted plaintiff's motion to compel, similar to
the one the D.C. Circuit reversed. United States v. U.S. Dist.
Court for So. Cal., 384 F.3d at 1202, denied Respondents’ appeal
and mandamus petition.
In In re Nelson, the Eleventh Circuit held that a statute
required specific language showing Congress’ clear and
convincing intent to bar discovery “in judicial proceedings.”
873 F.2d 1396, 1397 (11th Cir. 1989). The Federal Circuit has
held that “[o]nly upon a showing of ‘clear and convincing
evidence of congressional intent’ may access to judicial review
be restricted.” Nyeholt v. Secretary of Veterans Affairs, 298 F.3d
1350, 1353 (Fed. Cir. 2002); see also Jicarilla Apache Nation v.
United States, 60 Fed.Ct. 611, 613 (2004) (statute must have
specific language to bar discovery). Because § 618(f) does not
meet this criteria, discovery of board proceedings may take
-20-
place in the Ninth, Eleventh, and Federal Circuits, while it is
barred in the D.C Circuit. Someone is wrong.
Ironically, both the Ninth and Eleventh Circuits cited
Freeman v. Seligson, 405 F.2d 1326 (D.C. Cir. 1968) as
supporting authority. The D.C. Circuit held in Freeman that
“when Congress has thought it necessary to protect against
court use of records it has expressly so provided by specific
language.” 405 F.2d at 1351. Freeman explained:
The principle favoring full access to the courts
and litigants to relevant information in the
absence of strong competing considerations, is
an important foundation for the achievement
of justice by the courts in individual lawsuits.
The principle is national policy of high rank,
wholeheartedly endorsed and furthered by
Congress. In the absence of a_ specific
prohibition against disclosure in judicial
proceedings, such as Congress set forth in
some statutes, clear and strong indication is
required before it may be implied that the
policy of prohibition is of such force as to
dominate the broad objective of doing justice.
Id. at 1348. In re England distinguished Freeman's holding and
gnored its rationale, effectively reversing it.
Ill. IN RE ENGLAND’S HOLDING IGNORES THE
RULES OF STATUTORY CONSTRUCTION
As shown in I.A above, In re England ignored 10 U.S.C.
§ 101(f) and interpreted “may” in the mandatory sense rather
than “a permissive sense.” A-20-21. Moreover, courts
presume that Congress intended judicial review of
administrative decisions and “only upon a showing of ‘clear
and convincing evidence’ of a contrary legislative intent
should the courts restrict judicial review.” Abbott Laboratories
Me
v. Gardner, 387 U.S. at 136, 141. See also Barlow v. Collins, 397
U.S. at 166-67 (same). There is no “clear and convincing
evidence of contrary legislative intent” in § 618(f) or in
DOPMA.
Courts interpret a statute’s plain words in the context
of the existing law when the statute was passed; courts
presume Congress knows the law and drafts its legislation in
light of court decisions. Cannon v. University of Chicago, 441
U.S. 677, 696-97 (1979). “Congress expects its statutes to be
read in conformity with this Court’s precedents.” Clay v.
United States, 537 U.S. at 527. In re England ignored this rule.
Section 618(f) was passed in 1980, after Abbott Laboratories,
Johnson, and other federal courts had required “clear and
convincing evidence” of Congress’ intent to bar discovery.
Application of the law in 1980 makes § 618(f) merely a
housekeeping statute.
IV. IN RE ENGLAND’S HOLDING UNDERMINES
IMPORTANT NATIONAL POLICIES
A. In re England Creates a Safe Haven For
Forbidden Prejudice
In re England's finding that § 618(f) bars discovery will
shield racial, gender, and religious prejudice in board
proceedings from judicial review aixd remedy. To argue that
Congress intended to create a safe area for unconstitutional
prejudice and misconduct is absurd, particularly without one
word of such intent in DOPMA. In re England stands in stark
contrast to the judiciary’s leading role in national policies
eliminating illegal bias. “Since the Civil War, the Federal
Government and the federal courts have been the ‘primary
and powerful reliances’ in protecting citizens against
[invidious] discrimination.” Cannon, 441 U.S. at 407 (quoting
Steffel v. Thompson, 415 U.S. 452, 464 (1974). In re England
would abdicate and reverse the historic role of federal courts
“for vindicating every right given by the Constitution.” See
2.
Steffel, 415 U.S. at 463-64. In re England also contradicts
Congress’ intent “to pierce the veil of administrative secrecy
and to open agency action to the light of public scrutiny” as
shown in Senate Report 102-482 and expressed in the Freedom
of Information Act (FOIA). See Department of Air Force v. Roe,
425 U.S. 352, 361 (1975) (explaining FOIA’s purpose).
B. In re England Encourages the Politicization of
Religion
This Court has consistently warned against the fusion
of government and religious functions, Larkin v. Grendel’s Den,
Inc., 459 U.S. 116, 126 (1982), and the resulting “political
fragmentation on sectarian grounds.” E.g., Larsen, 456 U.S. at
252-53, 244-46. Petitioners’ evidence supporting their
allegations of denominational preference in chaplain
promotions, including the Respondents’ own investigations,
evidences a “political fragmentation based on sectarian
grounds.”
Petitioners represent a broad spectrum of the non-
liturgical community. Petitioner CFGC represents
approximately 7.5 million Charismatic Christians. The
Southern Baptist Convention (over 16 million members) and -
the Associated Gospel Churches (4.5 million) have passed
resolutions condemning the Navy’s religious prejudice against
their Navy chaplains and members. A-134-136 and A-137-138
respectively. Petitioners can identify other faith groups which
have'expressed concern over Respondents’ prejudice against
their chaplains and Navy members. Yet In re England fosters
sectarian strife by allowing the issue of religious prejudice to
fester unaddressed by creating a unique safe haven for
religious bias and favoritism.
-23-
V. SUPREME COURT DIRECTION AND GUIDANCE
ON STRICT SCRUTINY IS NEEDED
Respondents’ chaplain promotion boards have five or
six members, 10 U.S.C. § 612, who vote in secret, the majority
of whom SECNAVINST 1401.3 requires be chaplains.
Respondents’ own investigations into board misconduct show
that a single “zero” ensures that a candidate is not selected.
Petitioners challenge the entire chaplain selection process on
First and Fifth Amendment grounds. The Court of Appeals
noted that chaplains are “unique” Naval officers because they
are denomination representatives hired to conduct religious
services, A-4, but failed to apply that finding to the issue
before it, despite Petitioners’ request. A-25. This should be
an abuse of discretion because of the apparent First
Amendment issues, this Court’s guidance, and the District
Court's clear error.
A. Courts Have a Duty to Carefully Examine
Establishment Clause Claims
“What our cases require is careful examination of any
law challenged on establishment grounds with a view to
ascertain whether it furthers any of the evils against which
that Clause protects.” Committee for Public Education v.
Nyquist, 413 U.S. 756, 772 (1973); County of Allegheny v. ACLU,
492 U.S. 593, 609 (1989) (explaining court’s duty of
“unwavering vigilance” against Establishment Clause
violations). Having specifically noted the unique role of
chaplains as denominational representatives who are on loan
from their faith communities, hired to perform religious
services, and military officers, A-4, the Court of Appeals then
declined to consider the obvious implications of its definition
which contradicted the District Court’s holding that chaplains
sat on promotion boards as “Naval officers,” not
denominational representatives. See Adair, 183 F.Supp.2d at
62, A-107. In re England’s definition of chaplains as
denominational representatives brings them under the rule of
-24-
Bd. of Education of Kiryas Joel v. Grummet, 512 U.S. 657, 698-99
(1994), that the Sovereign’s power may not be delegated to
persons defined by their religious identity. The application of
strict scrutiny would have resolved the Establishment Clause
issue and made the Respondents’ appeal moot and void.
This Court recently reemphasized that courts are to
vindicate First Amendment rights in a manner that prevents
“undue delay.” City of Littleton, Colo. v. Z. J. Gifts D-4, LLC,
124 S.Ct. 2219 (2004). These cases will soon enter their sixth
year, and the fundamental question of whether strict scrutiny
applies when denominational representatives exercise the
sovereign’s power in awarding or denying government
benefits has not been resolved by an appellate court. Having
been asked to consider an obvious error that unduly delayed
resolution of important First Amendment rights and values,
the Court of Appeals abused its discretion in not examining
the issue “with a view to ascertain whether it furthers any of
the evils against which [the Establishment] Clause protects.”
Committee for Public Ed., 413 U.S. at 772.
B. The District Court’s Holding That No First
Amendment Concerns Arise when
Denominational Representatives Exercise the
Sovereign’s Power Is Clear Error.
The District Court's holding that no First Amendment
claims arise when the sovereign’s discretionary authority to
award or terminate government benefits to denominational
representatives is delegated to other denominational -
representatives, A-102-113, was clear error for four reasons.
First, the holding conflicts with the rule that government may
not “deliberately delegate discretionary power to an
individual, institution, or community on the ground of
religious identity”, Bd. of Education of Kiryas Joel v. Grummet,
512 USS. at 699, without “effective guarantees” that the power
would be used for secular, neutral, and non-ideological
-25-
purposes. 512 at 703 (citing Larkin v. Grendel's Den, Inc., 459
US. 116, 125 (1982)).
Second, the district court applied the rebuttable
presumption of regularity in an irrebuttable manner. See Adair,
183 F.Supp.2d at 60, A-104. This Court has found that
irrebuttable presumptions raise Due Process concerns when
fundamental interests are at issue. See Cleveland Bd. of Ed. v.
LaFleur, 414 U.S. 632 (1974); Stanley v. Illinois, 405 U.S. 645
(1972). Here First and Fifth Amendment rights are at issue.
Third, the district court’s conclusion that the First
Amendment did not apply because chaplains were “first and
foremost” officers, A-107, is contrary to this Court's
presumption that persons or groups defined by their religious
identity are presumed to advance their faith perspectives and
their entanglement with the Sovereign requires strict scrutiny
because “the conflict of function inheres in the situation.”
Larkin, 459 U.S. at 125 (quoting Lemon v. Kurtzman, 403 U.S.
602, 627 (1971)). In Lemon, the presumption was applied to
government-funded sectarian school teachers teaching non-
religious subjects.
Fourth, the District Court’s dismissal of Petitioners’
constitutional claim on a motion to dismiss is contrary to
Conley v. Gibson, 355 U.S. 41, 47 (1957). Exhibit 6 of Petitioners’
Complaint provides evidence that denomination was a fact in
promotion. If the Complaints’ allegations of misconduct on
boards were taken as true, the presumption of regularity could
not apply. Given access to board personnel, Petitioners can
prove facts that rebut the assumption.
Cc. This Court Should Define the Proper
Application of Strict Scrutiny
The failure of the District Court to apply the
appropriate standard of strict scrutiny has unnecessarily
prolonged this case and other Establishment Clause violations.
-26-
On June 5, 2003, Petitioners filed a motion for a structural
injunction to force the Navy to stop preferential treatment for
over-age Catholic active duty Naval Reserve chaplains. CFGC
Doc. No. 142. 10 U.S.C. § 14509 limits Reservists’ active duty
service to age 60. 10 U.S.C. § 14703(a) allows the Secretary to
extend chaplains above the grade of Lieutenant Commander
to age 67. Petitioners identified at least 16 Catholic Reserve LT
and LCDR chaplains on active duty who exceed the statutory
age limit of 60, seven were over 67, and four were in their 70s.
Although they have not met the statutory requirements for
retirement, the Navy categorizes the seven “over age 67”
chaplains as “retired reserve on active duty” to allow these
Catholics to reach the 20 years active duty required for a
pension. Only Catholics are allowed to remain on active duty
beyond the statutory age limits to qualify for government
pensions. The District Court has yet to rule on this injunction,
despite the obvious preference, the applicability of strict
scrutiny, and both statutory and Establishment Clause
violations.
Petitioners filed a Writ of Mandamus seeking to order
the Navy to follow its own regulations and not prefer Catholic
clergy. CFGC, 276 F.Supp.2d 82 (D.D.C. 2003). To hide
violations of its Reserve recall policy, the Navy recalled a
Catholic Reserve chaplain as a flight surgeon. Since the
Complaint’s allegations included favoritism, the District Court
denied the Writ. Id. at 84. Strict scrutiny should have
produced a different result.
CONCLUSION
Standing at the intersection of the Free Exercise and
Establishment Clauses, these cases raise fundamental First
Amendment issues of first impression. This Court has often
cited military chaplains as examples of the accommodation
available in the Constitution and the “play in the joints” of
these two clauses. See School Board of Abington Township v.
Schempp, 374 U.S. at 296-98 (Brennan, J. concurring, citing
-27-
chaplains as accommodation necessary to provide for the free
exercise of religion by military personnel). The question
posed by this petition is whether the Navy must follow the
Constitution in all of its practices and procedures, or whether
it may set its own course, independent of law and judicial
accountability. For all the above reasons, the Court should
grant this Petition for Certiorari.
Respectfully Submitted,
Of Counsel Arthur A. Schulcz, Sr.
John W. Whitehead Affiliated Attorney
Douglas R. McKusick with The Rutherford
THE RUTHERFORD INSTITUTE Institute
P. O. Box 7482 2521 Drexel Street
Charlottesville, VA 22906 Vienna, VA 22180
(434) 978-3888 (703) 645-4010
Counsel of Record for
Petitioners
December 17, 2004
No.
In The
Supreme Court of the United States
CHAPLAINCY OF FULL GOSPEL CHURCHES, ET AL.,
AND ROBERT H. ADAIR, ET AL.,
Petitioners,
Vv.
GORDON R. ENGLAND,
SECRETARY OF THE NAVY, ET AL.,
Respondents.
Un Petition for Writ of Certiorari to the
United States Court of Appeals for the
District of Columbia Circuit
Douglas R. McKusick Affilliated Attorney with
THE RUTHERFORD INSTITUTE The Rutherford Institute
Post Office Box 7482 2521 Drexel Street
Charlottesville, Virginia 22906 Vienna, Virginia 22180
(434) 978-3888 (703) 645-4010
Of Counsel Counsel of Record
Date: December 20, 2004
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477
;
APPENDIX
John W. Whitehead Arthur A. Schulcz, Sr.
APPENDIX
Decision of the United States Court of Appeals in
CMU GU Wau bw udeswesressrceccccccrccsscscces A-1
Order of the United States Court of Appeals Denial
of Petition for En Banc Review ............0seeeeee A-24
Order of the Court of Appeals amending its order denying
the Petitioners’ Petition for Rehearing En Banc ...... A-25
Opinion and judgment of the District Court for the District
of Columbia granting the Petitioners’ motion to
compel discovery, Chaplaincy of the Full Gospel
Churches v. Johnson, 217 F.R.D. 250 (D.D.C. 2003) ...... A-26
Opinion of the District Court for the District of Columbia
denying in part and granting in part Respondents’
motion to dismiss, Adair v. England, 183 F. Supp.
Ses pap esses cscccessccesccsse A-47
10 U.S.C. § 618 Action on reports of selection boards . A-109
EXHIBITS IN SUPPORT OF MOTION TO COMPEL
Declaration of Gary Paul Stewart .................. A-113
Declaration of Klon K. Kitchen, Jr. ................. A-115
Affidavit of Floyd Cedric Ellison ................-. A-117
Declaration of Gary Paul Stewart (Supplemental) .... A-120
June 13, 2001, Southern Baptist Convention Resolution
No. 7 on Discrimination Against Military Chaplains . A-122
8 AUGUST 2001 Associated Gospel Churches Resolution
Regarding Alleged Religious Discrimination Against
Military Chaplains Serving in the U.S. Navy ........ A-125
A-1
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 22, 2004 Decided July 27,2004
No. 03-5329
In re: Gordon R. England, Secretary of the Navy, et al.,
Petitioners
Consolidated with
03-5333, 03-5334
On Petition for Writ of Mandamus and
Appeals from the United States District Court
for the District of Columbia
(No. 00cv00566)
(No. 99cv02945)
Robert M. Loeb, Attorney, U.S. Department of Justice,
argued the cause for petitioners/appellants. With him on
the briefs were Peter D. Keisler, Assistant Attorney General,
Roscoe C. Howard, Jr., U.S. Attorney, and Marleigh D. Dover,
Attorney.
Arthur A. Schulcz, Sr. argued the cause and filed the
brief for respondents /appellees.
Before: GINSBURG, Chief Judge, and GARLAND and
ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge:
Navy chaplains, like other Navy officers, are
recommended for promotion by "selection boards" consisting
of superior officers who meet and discuss the relative merits
of candidates for promotion. The federal statute establishing
the procedures for such selection boards, which applies to all
the armed services, provides that board proceedings "may not
A-2
be disclosed to any person not a member of the board,” 10
U.S.C. § 618(f), and board members take an oath of
confidentiality to implement this requirement. Certain current
and former Navy chaplains and their particular endorsing
agency, the Chaplaincy of Full Gospel Churches (CFGC), sued
the Navy, alleging that it discriminates against chaplains
affiliated with the CFGC in, among other things, promotion
decisions. The chaplains and the CFGC sought to compel the
Secretary of the Navy to release selection board members from
their oath of confidentiality, to allow them to testify about
selection board proceedings leading to the challenged
decisions.
The district court ruled that Section 618(f) did not
preclude disclosure of selection board proceedings through
civil discovery, because Congress had not expressly addressed
the question of such discovery in providing that board
proceedings "may not be disclosed." The court accordingly
ordered the Secretary to release selection board members from
their oath. We reverse and hold that Sectiori 618(f) bars the
disclosure through civil discovery of promotion selection
board proceedings.
I. Background
A. The History and Organization of Navy Chaplains
In November 1775, the Continental Congress adopted
the first regulations to govern the fledgling Continental Navy.
See Rules for the Regulation of the Navy of the United
Colonies of North America (Nov. 28, 1775), reprinted in relevant
part in 1 Clifford M. Drury, The History of the Chaplain Corps,
United States Navy 3 (Bureau of Naval Personnel 1984).
Although those regulations did not expressly create a chaplain
position, Article 2 provided that "[t]he Commanders of the
ships of the thirteen United Colonies, are to take care that
divine service be performed twice a day on board, and a
sermon preached on Sundays, unless bad weather or other
A-3
extraordinary accidents prevent." Id. These duties often fell to
the captain himself or a designee: only two chaplains were
known to have served in the Continental Navy during the
Revolutionary War, and the Navy limited the number of
chaplains on active duty to nine until 1842 and to 24 from then
until 1914. Drury, supra, at 5, 62.
Early chaplains were responsible for educating
midshipmen and sailors in addition to their religious duties.
The Navy placed great emphasis on the chaplains’ role as
teacher, selecting them "more for their teaching ability than for
their experience or training as ministers." Id. at 18. Indeed, the
first "naval academy" was established 200 years ago at the
Washington Navy Yard by Chaplain Robert Thompson, who
taught midshipmen mathematics and navigation. Id. at 18- 20.
The success of that academy led to the establishment of the
United States Naval Academy at Annapolis, Maryland in 1845.
From those beginnings, the Navy Chaplain Corps has
grown with the service to over 800 strong. It is the
responsibility of Navy chaplains to "provide for the free
exercise of religion for all members of the [Navy and Marine
Corps], their dependents, and other authorized persons."
Directive No. 1304.19, Appointment of Chaplains for the
Military Services J 3 (Dep't of Def. Sept. 18, 1993) (Directive).
The Navy chaplain's mission is to accommodate the religious
needs of sailors and Marines by providing religious services,
counseling, and support. See Marine Corps Warfighting
Publication 6-12, Religious Ministry Support in the United States
Marine Corps 1-4, 1-5 (Dec. 12, 2001). In addition to this
religious ministry, Navy chaplains also provide ethics
instruction and critical incident debriefings, and advise
commanders on religious, moral, and ethical issues. Id. at 1-5.
A Navy chaplain's role within the service is "unique,"
involving simultaneous service as clergy or a "professional
representative[ ]" of a particular religious denomination and
as a commissioned naval officer. OPNAVINST 1730.1,
A-4
Chaplains Manual 1-2-1-3 (Dep't of the Navy Oct. 3, 1973). A
chaplain must satisfy not only the normal physical and
educational requirements to become a commissioned officer,
but also must have a graduate level theology degree or
equivalent and an ecclesiastical endorsement -- official notice
from a faith group endorsing agency that a candidate ‘is
professionally qualified to represent that faith group within the
military Chaplaincy." Chaplain Candidate Program Officer
Handbook Glossary; see Directive {J 5.1-5.2. Ecclesiastical
endorsement must be maintained throughout a chaplain's
career; withdrawal of ecclesiastical endorsement at any point
in a chaplain's career could result in separation from the Navy.
Directive { 5.1.4.
The Navy categorizes chaplains into four general
religious categories or "faith groups" according to similarities
in religious denominations: Roman Catholic, Liturgical
Protestant, Non-Liturgical Protestant, and Special Worship.
Liturgical Protestant primarily includes those protestant
denominations that trace their origins to the Protestant
Reformation and whose religious services are characterized by
a set liturgy or order of worship, including the Lutheran,
Episcopal, Methodist, and Presbyterian denominations. CFGC
Second Am. Compl. § 12(a) (CFGC Compl.). Non-Liturgical
Protestant refers to protestant denominations "without a
formal liturgy or order in their worship service" whose clergy
do not wear religious dress during services, comprising the
Baptist, Evangelical, Pentecostal, Bible, and Charismatic
churches. Id. { 12(b). The Special Worship category includes
the Christian Orthodox, Jewish, Muslim, and Mormon faiths.
Appellants’ Br. at 5.
B. The Personnel System
The Navy uses the same personnel system for all
officers, including chaplains. That system seeks to manage
officers’ careers to provide the Navy with the best qualified
personnel through three critical personnel decisions: (1)
A-5
promotion; (2) continuation on active duty; and (3) selective
early retirement. A naval officer must be recommended by a
promotion selection board to advance in rank from lieutenant
(junior grade) through rear admiral (lower half). See 10 U.S.C.
§ 611(a). Continuation on active duty decisions occur when
the needs of the Navy require the selection of certain officers --
otherwise subject to discharge or retirement for failing to be
promoted to the next rank -- to continue on active duty for an
established period of time. See id. § 637(a)(1), (d). Conversely,
selective early retirement decisions generally involve the
selection of officers in the grade of captain who were passed
over for promotion two or more times for involuntary, early
retirement. Id. § 638(a)(1).
Each of these personnel decisions involves a selection
board comprised of naval officers who deliberate, make
selections, and then submit their recommendations to the
Secretary of the Navy. Promotion selection boards are
convened under 10 U.S.C. § 611(a); continuation on active
duty and selective early retirement boards are convened under
10 U.S.C. § 611(b). Selection boards must consist of five or
more active-duty naval officers who "must be serving in a
grade higher than the grade of the officers under
consideration by the board, except that no member of a board
may be serving in a grade below ... lieutenant commander.” 10
U.S.C. § 612(a)(1). At least one member of the board must be
from the category being considered; thus, if a selection board
is considering chaplains, at least one board member must be
a chaplain. See id. § 612(a)(2)(A).
Promotion selection boards may only consider an
eligible officer's official military personnel file and the
selection board "precept" issued to the board by the Secretary
of the Navy. See 10 U.S.C. § 615(a), (b). A precept is the
Secretary's official guidance to the board, consisting of: (1) the
maximum number of officers that the board may recommend
for promotion, (2) "information or guidelines relating to the
needs of the [Navy] for officers having particular skills," and
A-6
(3) applicable guidelines from the Secretary of Defense. Id. §
615(b). A promotion selection board considers these items and
recommends those officers "whom the board ... considers best
qualified for promotion.” Id. § 616(a).
_ The promotion board reports its recommendations to
the Secretary, 10 U.S.C. § 617(a), who takes action on the
report in accordance with Section 618. If the Secretary
"determines that the board acted contrary to law or regulation
or to guidelines furnished the board under Section 615(b),” the
Secretary must return the board's recommendations with a
written explanation for further proceedings. Id. § 618(a)(2).
The Secretary otherwise reviews the board's recommendations
and adopts or modifies the list, and then forwards it to the
President through the Chairman of the Joint Chiefs of Staff
and the Secretary of Defense. See id. § 618(b), (c). The President
ultimately appoints recommended officers for promotion to
the next rank, subject to confirmation by the Senate for
promotions above the rank of lieutenant (junior grade). See id.
§ 624.
The other statutory selection boards - continuation on
active duty and selective early retirement -- are convened
under Section 611(b) and have somewhat different procedures.
The Secretary has final authority over these boards, and no
Presidential or Senatorial action is involved. In addition,
unlike the situation with promotion boards, there are no
statutory guidelines that dictate what information other
statutory selcction boards may consider.
By statute, each member of a selection board must take
an oath to perform his duties “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. As noted, members
of promotion selection boards may not disclose the
proceedings of the board to anyone not a member of the
board, "[e]xcept as authorized or required by [Section 618]." Id.
§ 618(f). Navy regulations also require all selection board
A-7
members to take an oath to "not divulge the proceedings of
this board except as authorized or required by the Secretary of
the Navy or higher authority." Mem. in Support of Mot. for an
Order Requiring Def. Secretary of the Navy to Release
Personnel Associated with Chaplain Promotion Boards from
their Oath Not to Disclose Promotion Board Proceedings (Oct.
29, 2002) (Pls.' Mot.), Ex. 1, Oaths; see also SECNAV
Instruction 1420.1A, Promotion and Selective Early Retirement
of Commissioned Officers on the Active Duty Lists of the
Navy and Marine Corps { 12(f) (Dep't of the Navy Jan. 8,
1991) ("Each member ... shall swear or affirm that he or she
will not disclose the proceedings or recommendations of the
board except as authorized or required by SECNAV or higher
authority.").
Section 618(f) was enacted as part of the Defense
Officer Personnel Management Act (DOPMA), Pub. L. No. 96-
513, 94 Stat. 2835 (1980) (codified in scattered sections of 10
U.S.C.). Through DOPMA, Congress sought to update the
existing statutory framework for military promotions
established by the Officer Personnel Act of 1947, Pub. L. No.
80-381, 61 Stat. 795, by eliminating the services’ individual
promotion systems in favor of "a single, permanent promotion
system under a single, applicable statutory grade table and
under laws that would be the same for each service." S. Rep.
No. 96-375, at 3 (1979). Section 618(f) codified in a uniform
manner the established practice in the individual services of
barring the disclosure of selection board proceedings. See, ¢.g.,
Brenner v. United States, 202 Ct. Cl. 678, 686 (Ct. Cl. 1973) ("The
proceedings of selection boards are secret.") (Navy); Sanders v.
United States, 594 F.2d 804, 815 (Ct. Cl. 1979) (en banc)
("Selection board proceedings are secret") (Air Force); Army
Regulation 624-100, Promotion of Officers on Active Duty { 2-
8 (Oct. 20, 1975).
Cc. Procedural History
Plaintiffs -- current and former Non-Liturgical
A-8
Protestant chaplains and their endorsing agency, the
Chaplaincy of Full Gospel Churches (CFGC) (collectively
"Chaplains") -- filed two separate suits against the Secretary of
the Navy, other Navy officials, and the Navy (collectively
"Navy"), alleging that "the Navy has established, promoted,
and maintained religious quotas and other discriminatory
practices in the Navy Chaplain Corps in violation of the First
and Fifth Amendments." Chaplaincy of Full Gospel Churches v.
Johnson, 217 F.R.D. 250, 253 (D.D.C. 2003) (CFGC); see also
Adair v. England, 217 F. Supp. 2d 7, 8 (D.D.C. 2002). The district
court subsequently consolidated the cases for purposes of all
pretrial motions. Adair, 217 F. Supp. 2d at 8. The Chaplains
allege that the Navy's discriminatory practices favor Catholic
and Liturgical Protestant chaplains to the detriment of Non-
Liturgical Protestant chaplains. See CFGC Compl. 7 3, 56-63.
As pertinent here, the Chaplains allege that the Navy
discriminates against chaplains endorsed by the CFGC
through promotions and retention. See CFGC, 217 F.R.D. at
253. The Chaplains claim that this discrimination is
manifested in the policies for and operation of promotion and
other statutory selection boards, permitting "religious bias"
and "denominational issues" -- criteria not related to career
performance -- to interfere with the proper selection of the
best-qualified chaplains for advancement. Adair Class Action
First Am. Compl 4. 50 (Adair Compl.); see CFGC, 217 F.R.D. at
253-54. The Chaplains allege that the Navy: (1) provided
promotion boards with each candidate's religious
denomination, CFGC Compl. { 69; (2) used religious quotas
and denominational criteria for promotion and forced
retirement selections, Adair Compl. J 50; (3) denied
promotions based upon ideological criteria, see id.; and (4)
"stacked" promotion and other statutory selection boards with
Catholic and Liturgical Protestant chaplains, id. J 47.
The Chaplains requested that the Secretary release
board members from their oath of confidentiality to allow
them to testify; the Secretary declined to do so. The Chaplains
A-9
thereupon filed a motion to compel discovery of selection
board proceedings, seeking to depose board members. See Pls.’
Mot. The Navy argued that 10 U.S.C. § 618(f) barred disclosure
of selection board deliberations. The district court disagreed
and granted the Chaplains' motion, holding that "[b]ecause
section 618(f) does not contain specific language barring
discovery, and because of the circuit's emphasis on providing
litigants full access to relevant information, the court
concludes that section 618(f) does not create an absolute or
qualified privilege barring discovery of selection-board
proceedings." 217 F.R.D. at 260. The Navy filed an
interlocutory appeal and a petition for mandamus, which we
consolidated.
II. Appellate Jurisdiction
This court has appellate jurisdiction over "final
decisions" of the district court. 28 U.S.C. § 1291; DSMC, Inc. v.
Convera Corp., 349 F.3d 679, 682 (D.C. Cir. 2003). Discovery
orders are accordingly generally appealable only upon a final
decision in the case, not on an interlocutory basis. McKesson
Corp. v. Islamic Republic of Iran, 52 F.3d 346, 353 (D.C. Cir.
1995). The Navy nonetheless argues that we have
interlocutory jurisdiction to hear its appeal under the collateral
order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546 (1949).
"The collateral order doctrine is best understood not as
an exception to the ‘final decision’ rule laid down by Congress
in § 1291, but as a ‘practical construction’ of it." Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (quoting
Cohen, 337 U.S. at 546). The collateral order doctrine allows
appeals from the "small category" of decisions "that are
conclusive, that resolve important questions separate from the
merits, and that are effectively unreviewable on appeal from
the final judgment in the underlying action." Swint v. Chambers
County Comm'n, 514 U.S. 35, 42 (1995); see United States v. Philip
Morris Inc., 314 F.3d 612, 617 (D.C. Cir. 2003).
A-10
1. It is undisputed that the district court conclusively
ordered the Navy to release board members from their oaths
not to disclose board proceedings. The district court
considered and rejected all the Navy's arguments opposing
the motion to compel, and, with respect to the question on
appeal, concluded that "section 618(f) does not create an
absolute or qualified privilege barring discovery of selection-
board proceedings." CFGC, 217 F.R.D. at 260. The first
requirement is satisfied.
2. To satisfy the second requirement under the
collateral order doctrine, the Navy must show that "appellate
review will resolve an important issue completely separate from
the merits of the action." Philip Morris, 314 F.3d at 617
(emphases added). Determining whether Section 618(f) bars
discovery in this case does not require this court to consider
the merits of the Chaplains' constitutional claims; the
separability prong of the second requirement is clearly
satisfied.
“Importance” is a more subjective inquiry. The
Supreme Court has explained that this inquiry requires a
"judgment about the value of the interests that would be lost
through rigorous application of [the] final judgment
requirement," and that " ‘important’ in Cohen's sense [means]
being weightier than the societal interests advanced by
ordinary operation of final judgment principles." Digital
Equip., 511 U.S. at 878- 79. This court has explained that an
issue is important under Cohen "if the interests that would
potentially go unprotected without immediate appellate
review of that issue are significant relative to the efficiency
interests sought to be advanced by adherence to the final
judgment rule." Philip Morris, 314 F.3d at 617 (quoting In re
Ford Motor Co., 110 F.3d 954, 959 (3d Cir. 1997)).
In Philip Morris, we analyzed whether the collateral
order doctrine provided appellate jurisdiction to hear an
interlocutory appeal challenging denial of an attorney-client
A-11
privilege claim. The court held that the attorney-client
privilege was "important" under Cohen, concluding that "the
institutional benefits of allowing interlocutory review of
attorney-client privilege claims outweigh the costs of delay
and piecemeal review that may result." Philip Morris, 314 F.3d
at 618. The court explained that the privilege " 'encourage[s]
full and frank communication between attorneys and their
clients' " and "promotes ‘broader public interests in the
observance of law and administration of justice.’ " Id. (quoting
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); alteration
in Philip Morris). Those "important institutional interests"
would be "eviscerate[d]" by an erroneous privilege ruling,
underscoring the importance of interlocutory review. Id.
The Navy argues that Section 618(f) similarly creates a
privilege that protects the deliberations of military promotion
boards from disclosure. According to the Secretary of the
Navy, "[f]ree, uninhibited, and candid deliberations by
selection boards are ... vital to the effective functioning of the
selection board process," and disclosure of board proceedings
would "severely undermine the ability ... of the Navy to
effectively operate its promotion and selective early retirement
system." Decl. of Gordon R. England, p 9 (England Decl.). The
proper application of Section 618(f) therefore implicates
institutional interests in the proper administration of the
armed forces.
The statutory nature of the claimed privilege also
supports a finding of importance under Cohen. In Digital
Equipment, the Supreme Court suggested that "[w]Jhere
statutory and constitutional rights are concerned," it is easier
to conclude that they are "weightier than the societal interests
advanced by the ordinary operation of final judgment
principles." 511 U.S. at 879. We cannot say that the importance
of the interests assertedly protected by Congress through
Section 618(f) should be subordinated to the general interest
in avoiding litigation delay and piecemeal review. If it is
correct about the critical nature of the protection from
ao. |
A-12
disclosure provided by Section 618(f), the Navy should not |
lose the benefit of that protection prior to appellate review. '
3. To satisfy the final requirement for invoking the
collateral order doctrine, the appellant must show that the
district court's order "will be effectively unreviewable on
appeal from a final judgment." Philip Morris, 314 F.3d at 617.
In Philip Morris, this court determined that a party's claim of
attorney-client privilege would be "effectively unreviewable"
because disclosure of privileged material "would mak[e] the
issue of privilege effectively moot" on appeal. 314 F.3d at 619.
"Disclosure followed by appeal after final judgment is
obviously not adequate in [privilege] cases -- the cat is out of
the bag." In re Papandreou, 139 F.3d 247, 251 (D.C. Cir. 1998).
Ae em ae
So too here. The right at issue -- the Navy's claim of
statutory privilege -- would be destroyed if board members
were compelled to testify; there would be no privilege to
protect on appeal from final judgment. "It would be
impossible for [this] court to sort out and redress the |. m
caused by the incorrect disclosure." Philip Morris, 314 F.3d at
619.
Having found that this interlocutory appeal satisfies
the Cohen requirements, we hold that the collateral order
doctrine provides appellate jurisdiction to review the district
court's order.’ We now turn to the merits of the Navy's claim
' Ina related case, the Ninth Circuit summarily dismissed for lack of
jurisdiction a similar appeal from an order requiring disclosure, citing
Bank of America v. National Mortgage Equity Corporation, 857 F.2d 1238 (9th
Cir. 1988). Wilkins v. United States, No. 04-55046 (9th Cir. Apr. 27, 2004)
(unpublished order). That dismissa] does not conflict with our finding of
jurisdiction here because the case our sister circuit relied upon -- Bank of
America -- did not consider whether the collateral order doctrine
provided appellate jurisdiction. See Bank of America, 857 F.2d at 1239
(determining whether court had appellate jurisdiction under an exception
for third parties aggrieved by a discovery order). On the same day that it
issued the order dismissing the Government's appeal, the Ninth Circuit
also ordered that the Government's parallel petition for mandamus be
of statutory privilege.
III. Merits
The Federal Rules of Civil Procedure encourage the
exchange of information through broad discovery. Federal
Rule of Civil Procedure 26(b)(1) authorizes "discovery
regarding any matter,not privileged, that is relevant to the
claim or defense of any party." The district court concluded
that the selection board proceedings at issue in this case are
relevant to the Chaplains’ claims, and thus are discoverable
under Rule 26(b)(1). The Navy argues, however, that Section
618(f) creates a statutory privilege barring the disclosure of
selection board proceedings. Although the terms of a statute
should be strictly construed "to avoid a construction that
would suppress otherwise competent evidence,” St. Regis
Paper Co. v. United States, 368 U.S. 208, 218 (1961), if there is a
valid statutory privilege, then "information may be withheld,
even if relevant to the lawsuit and essential to the
establishment of plaintiff's claim." Baldridge v. Shapiro, 455 U.S.
345, 360 (1982).
1. We begin with the plain language of the statute in
question. "It is well established that ‘when the statute's
language is plain, the sole function of the courts -- at least
where the disposition required by the text is not absurd -- is to
enforce it according to its terms.’ " Lamie v. United States Tr.,
124 S. Ct. 1023, 1030 (2004) (quoting Hartford Underwriters Ins.
Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)). Section
618(f) provides, in full:
Except as authorized or required by this
section, proceedings of a selection board
convened under section 611(a) of this title may
referred to a merits panel. See United States v. Wilkins, No. 04-70709 (9th
Cir. Apr. 27, 2004) (unpublished order). Disclosure in Wilkins has been
stayed pending resolution of that petition.
No ONES SOE ae RE EP EE RT ET TN
A-14
not be disclosed to any person not a member of
the board.
This is the language of command -- "may not be disclosed" --
in a context in which commands are expected to be obeyed.
There is no inherent ambiguity in the phrase "may not be
disclosed" that would justify departing from those plain terms
pursuant to a judicially-crafted exception.
That conclusion is fortified by the fact that Congress
provided an express exception to the otherwise categorical ban
on disclosure. The opening clause of Section 618(f) provides an
exception for disclosures "authorized or required" by Section
618 itself. In other words, the drafters of Section 618(f) wrote
the ban on disclosure in such broad and absolute terms that
they felt the need to specify that board proceedings could be
disclosed in connection with the very reason you have them --
to submit recemmendations to the Secretary of a military
department, the Secretary of Defense, and ultimately the
President for action under Section 618.
Section 618 also directs the Secretary of a military
department to review the board reports "to determine whether
the board has acted contrary to law or regulation or to
guidelines furnished the board." 10 U.S.C. § 618(a)(1). A
Department of Defense Instruction accordingly permits the
Secretary of a military department to release board members
from the confidentiality requirements if "the integrity of the
board's proceedings has been affected by improper influence
of senior military or civilian authority, misconduct by the
board president or a member, or any other reason." Instruction
1320.14, Commissioned Officer Promotion Program
Procedures { 6.2.1.3 (Dep't of Def. Sept. 24, 1996); accord id. [J
6.2.2.5, E4.1.6. Contrary to the Chaplains’ contention, the fact
that the Secretary of the Navy exercised this authority in
connection with Inspector General inquiries in 1997 and 1998
does not support implying an additional exception for civil
discovery. The statute makes no provision for disclosure
A-15
pursuant to the Federal Rules of Civil Procedure, even as it
does for disclosure pursuant to Section 618 itself, and we are
reluctant to imply an additional exception for that purpose.
See Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447
U.S. 102, 109 (1980) (declining to imply an exception to
Consumer Product Safety Act restrictions on disclosure of
accident reports for disclosures under FOIA; "[i]f Congress
had intended to exclude FOIA disclosures from [the statutory
restrictions] it could easily have done so explicitly ... as it did
with respect to the other listed exceptions... We are
consequently reluctant to conclude that Congress’ failure to
include FOIA requests within the exceptions ... was
unintentional."). "When Congress provides exceptions in a
statute, it does not follow that courts have authority to create ~
others." United States v. Johnson, 529 U.S. 53, 58 (2000); see also
Detweiler v. Pena, 38 F.3d 591, 594 (D.C. Cir. 1994) ("Where a
statute contains explicit exceptions, the courts are reluctant to
find other implicit exceptions.").
"[W]here the terms of a statute are unambiguous,
judicial inquiry is complete," Adams Fruit Co. v. Barrett, 494
U.S. 638, 642 (1990), and resort to "the more controversial
realm of legislative history" is unnecessary. Lamie, 124 S. Ct. at
1031. We find it "instructive," however, id. at 1033, to note that
such history as there is fully comports with our plain language
reading, and that nothing in that history remotely suggests
that Congress intended an unexpressed exception to the ban
on disclosure for civil discovery.
Disclosure of selection board proceedings in civil
discovery would certainly undermine, if not totally frustrate,
the purpose of Section 618(f). As the Secretary of the Navy ex-
plained in his declaration, "[s]election board members will be
less likely to engage in frank and open discussion if such
discussions will be open to public scrutiny." England Decl., J
9. If board members knew that candidates passed over for
promotion could gain access to board proceedings, that would
clearly inhibit frank assessment of candidates’ relative
A-16
strengths and weaknesses. As Secretary England explained:
[D]etermining which officers are best qualified for
promotion from a pool of many fully qualified
candidates involves inherently difficult and subjective
evaluations. ... Release of information regarding these
proceedings to the public will severely undermine the
ability of the Department of the Navy to effectively
operate its promotion and selective early retirement
systems.
Id.
2. The Supreme Court has addressed the question of
whether broad, statutory bans on disclosure should be applied
according to their terms, when doing so interferes with a civil
litigant's effort to obtain discovery of relevant material under
Federal Rule of Civil Procedure 26. In Baldridge v. Shapiro, 455
U.S. at 348-52, two municipalities sued the Department of
Commerce, seeking to obtain from the Census Bureau raw
census data -- including individual respondents’
questionnaires -- to challenge the results of the 1980 census.
Section 8(b) of the Census Act, 13 U.S.C. § 8(b), provided in
relevant part that "the Secretary [of Commerce] may furnish
copies of tabulations and other statistical materials which do
not disclose information reported by, or on behalf of, any
particular respondent." Section 9(a) of the Act, 13 U.S.C. § 9(a),
provided that:
Neither the Secretary, nor any other officer or
employee of the Department of Commerce or bureau
or agency thereof, may, except as provided in section
8 of this title --
(3) permit anyone other than the sworn officers and
employees of the Department or bureau or agency
there- of to examine the individual reports.
The Court recognized that the discovery rules
A-17
“encourage open exchange of information," and quoted the
admonition in St. Regis Paper to avoid construing statutes to
suppress otherwise competent evidence. 455 U.S. at 360. The
Court nevertheless held that the "unambiguous language of
the confidentiality provisions," id. at 355, barred discovery of
the protected information: -
Congress, of course, can authorize disclosure in
executing its constitutional obligation to conduct a
decennial census. But until Congress alters its clear
provisions under ss 8(b) and 9(a) of the Census Acct, its
mandate is to be followed by the courts.
Id. at 362.
The Court noted that Congress's purpose in barring
disclosure was to promote the success and accuracy of the
census by assuring the public that responses would be kept
confidential, and that "[d]isclosure by way of civil discovery
would undermine the very purpose of confidentiality
contemplated by Congress." Id. at 361. The Constitution
expressly authorizes Congress to conduct a census "as they
shall by Law direct," U.S. CONST. art. I, § 2, cl. 3, and the Court
concluded that Congress's "wisdom" in barring all disclosure
of individual information "is not for us to decide in light of
Congress’ 180 years' experience with the census process.” Id.
3. The district court took a different approach here and
declined to apply the plain language of Section 618(f), because
while Congress said board proceedings "may not be
disclosed," it did not say board proceedings may not be
disclosed in civil discovery. See CFGC, 217 F.R.D. at 260
("section 618(f) does not contain specific language barring
discovery"). The Supreme Court has repeatedly rejected such
an approach to statutory construction as a general matter. See,
e.g., PGA Tour, Inc. v. Martin, 532 U.S. 661, 689 (2001) (" 'the
fact that a statute can be applied in situations not expressly
anticipated by Congress does not demonstrate ambiguity. It
demonstrates breadth.’ ") (quoting Pennsylvania Dep't of
A-18
Corrections v. Yeskey, 524 U.S. 206, 212 (1998) (quoting Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985))); accord
Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 298 (D.C. Cir. 2003)
("[T]he Supreme Court has consistently instructed that
statutes written in broad, sweeping language should be given
broad, sweeping application."). The district court relied for the
opposite approach upon our cases stating that "general
statutory bans on publication do not bar limited disclosure in
judicial proceedings, including court-supervised discovery,"
Laxalt v. McClatchy, 809 F.2d 885, 889 (D.C. Cir. 1987), and
noting that "where Congress thought it necessary to protect
against court use of records it has expressly so provided by
specific language." Freeman v. Seligson, 405 F.2d 1326, 1351
(D.C. Cir. 1968); see also Friedman v. Bache Halsey Stuart Shields,
Inc., 738 F.2d 1336, 1343 (D.C. Cir. 1984) (quoting Freeman).
The district court seriously overread those precedents.
In Laxalt, for example, we held that the Privacy Act did not
prohibit disclosure of protected material in discovery, but the
provision in question expressly permitted disclosure “pursuant
to the order of a court of competent jurisdiction." 5 U.S.C. §
552a(b)(11) (1982); see Laxalt, 809 F.2d at 887 n.7. We
specifically noted that fact in concluding that the Privacy Act
did not trump the normal discovery rules. See Laxalt, 809 F.2d
at 889. This holding is hardly precedent for overriding a
categorical prohibition on disclosure of the sort at issue here.
Friedman and Freeman considered different versions
and clauses of Section 8(a) of the Commodities Exchange Act
(CEA), governing investigative files of the Secretary of
Agriculture and, later, the Commodity Futures Trading
Commission (CFTC). In each case, we ruled that the provision
in question did not bar civil discovery. In Friedman, however,
the clause simply provided that the CFTC "may withhold from
public disclosure any data or information concerning or
obtained in connection with any pending investigation of any
person." 7 U.S.C. § 12(a) (emphasis added). "May withhold" is
not tantamount to "may not be disclosed."
A-19
In Freeman, the clause at issue provided that the
Secretary of Agriculture "may publish" the results of
investigations and statistical information of interest to the
public, "except data and information which would separately
disclose the business transactions of any person and trade
secrets or names of customers.” See 405 F.2d at 1340-41
(emphasis omitted; quoting statute). The majority held that
disclosure in civil discovery was not "publishing" of the sort
prohibited by this language; Congress was concerned with
“widespread dissemination of information not otherwise
available to the public, and not with disclosure in judicial
proceedings." Id. at 1349. Here, Section 618(f) does not merely
prohibit "publication," it categorically bars mere disclosure to
anyone not a member of the promotion selection board.”
4. In Baldridge, the Court noted that a conclusion that
a statutory privilege exists "shields the requested information
from disclosure despite the need demonstrated by the
2As the district court recognized, see CFGC, 217 F.R.D. at 258 n. 9, St.
Regis Paper is even further afield. The provision of The Census Act at
issue in that case precluded disclosure by government officials of certain
information; the question was whether that provision should be
construed to protect private entities from turning over the same
information in response to civil discover. St. Regis Paper, 386 U.S. at 215-
7. The Court's statement that it should “avoid a construction that would
suppress otherwise competent evidence unless the statute, strictly
construed, requires such a result,” id. at 218, was made in the course of
rejecting an argument for expanding the reach of a statutory privilege
beyond its terms. The Court declined to do so, noting that “we cannot
rewrite the Census Act.”
The Chaplains also seek support for their clear statement rule from
Webster v. Doe, 486 U.S. 592, 603 (1988) (“where Congress intends to
preclude judicial review of judicial claims, its intent to do so must be
clear”). Section 618(f), however, does not preclude judicial review of the
Chaplains’ claims, and the government has not argued that it does. As
the government recognizes, “plaintiffs here remain free to litigate their
discrimination claims and to support them with evidence.” Reply Br. at
4.
A-20
litigant." 455 U.S. at 362; see id. at 360 ("If a privilege exists,
information may be withheld, even if relevant to the lawsuit
and essential to the establishment of a plaintiff's claim."). As
the Supreme Court reiterated this past Term:
Our unwillingness to soften the import of Congress’
chosen words even if we believe the words lead to a
harsh outcome is longstanding. It results from
"deference to the supremacy of the Legislature, as well
as recognition that Congressmen typically vote on the
language of a bill.”
Lamie, 124 S. Ct. at 1032 (quoting United States v. Locke, 471 U.S.
84, 95 (1985)). As in Baldridge, we accordingly apply the bar
on disclosure as written, and conclude that it applies to block
civil discovery of promotion selection board proceedings in
civil litigation.
5. Section 618(f) applies to "proceedings of a selection
board convened under section 611(a) of this title." 10 U.S.C. §
618(f) (emphasis added). Section 611(a) provides authorization
to convene "selection boards to recommend for promotion,"
while Section 611(b) provides authorization to convene the
other statutory selection boards -- continuation on active duty
and selective early retirement -- governed by Sections 637 and
638 respectively. 10 U.S.C. § 611(a), (b). There is no provision
similar to Section 618(f) -- barring disclosure of board
proceedings -- in Sections 637 and 638. 10 U.S.C. §§ 637, 638.
The plaintiffs’ motion to compel was titled "Motion for
an Order Requiring Defendant Secretary of the Navy to
Release Personnel Associated with Chaplain Promotion
Boards from their Oath Not to Disclose Promotion Board
Proceedings.” Although the title mentioned only promotion
boards, the plaintiffs requested the court to compel the
Secretary to release all members of "promotion, selective early
retirement (‘SER’) and other statutory boards" from their oath
of non- disclosure. Mem. in Support of Pls.’ Mot. at 2. The
plaintiffs used the term "selection board" throughout the
A-21
motion to refer collectively to all types of selection boards. See
id. at 7, 9; see also id. at 7 (citing to the complaint for allegations
of impropriety in the selective early retirement process).
The Navy understood the plaintiffs to be seeking
disclosure of promotion boards and selective early retirement
boards. Defs.' Opp. to Pls.' Mot. at 5 n.3. Throughout the
opposition, the Navy used the term "selection board" and did
not distinguish among the different types of boards. See id. at
2, 6, 16, 17. The Navy argued that the district court should
deny “discovery into the deliberations of Chaplain Corps
promotion and selective early retirement (‘SER’) boards”
because "10 U.S.C. § 618(f) absolutely bars disclosure of the
Navy's selection board proceedings." Id. at 1. The district court
also treated the plaintiffs’ motion as seeking disclosure of all
selection boards. CFGC, 217 F.R.D. at 254 n.4. Without
distinguishing between the various boards, see id. at 258-60,
the district court granted the plaintiffs’ motion, holding that
‘section 618(f) does not create an absolute or qualified
privilege barring discovery of selection-board proceedings."
Id. at 260.
On appeal, neither of the parties distinguished
between the different types of selection boards. The plaintiffs
referred collectively to "selection boards,” see Appellees’ Br. at
37, 46, and also discussed both promotion selection boards, see
id. at 40, 44, and selective early retirement boards, id. at 45, in
their arguments against the existence of a statutory bar. The
plaintiffs never argued that Section 618(f) by its terms did not
apply to continuation on active duty or selective early
retirement boards. The Navy similarly treated the selection
boards collectively, arguing on appeal that Section 618(f)
barred disclosure of both promotion and selective early
retirement boards. Appellants’ Br. at 17, 19-21.
We are frankly a bit surprised that throughout this
dispute about whether a one-sentence statutory provision
barred disclosure of selection board proceedings, neither party
A-22
pointed out that the statute, by its terms, applied only to
certain types of selection board proceedings. This calls to mind
what Judge Friendly described as Felix Frankfurter's
"threefold imperative to law students” in his landmark
statutory interpretation course: "(1) Read the statute; (2) read
the statute; (3) read the statute!" Henry J. Friendly, Benchmarks
202 (1967). In any event, in reversing the district court's
decision with respect to promotion selection boards, we do not
decide whether proceedings of other statutory selection
boards are discoverable. Neither the district court nor the
parties addressed that as a distinct question, and analysis of it
may turn in part on a proper understanding of Section 618(f).
We accordingly vacate the district court's decision with
respect to continuation on active duty and selective early
retirement selection boards, and remand for further
consideration. The parties should be afforded the opportunity
to litigate, and the district court in the first instance to decide,
whether continuation on active duty and selective early
retirement board proceedings are protected, and to what
extent, in light of our decision on the proper reading of Section
618(f).
IV. The Chaplains' Pendent Claims
In their brief, the Chaplains present two additional
issues, arguing that the district court erred in rejecting their
claims that (1) Navy chaplains should be considered clergy,
not naval officers, for the purpose of evaluating their
constitutional claims, and (2) allowing Navy chaplains to sit
on promotion boards violates the Establishment Clause of the
First Amendment. See Appellees’ Br. at 46, 52-55. Recognizing
that these issues are not presently appealable by themselves,
the Chaplains nonetheless urge this court to exercise pendent
appellate jurisdiction to review them now.
"This court does not exercise pendent appellate
jurisdiction frequently or liberally." National R.R. Passenger
Corp. v. Expresstrak, 330 F.3d 523, 527 (D.C. Cir. 2003). Such
A-23
jurisdiction may be appropriate only when (1) a
“nonappealable order is ‘inextricably intertwined’ with the
appealable order," or (2) review of the nonappealable order is
" ‘necessary to ensure meaningful review’ " of the appealable
order. Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675,
679 (D.C. Cir. 1996) (quoting Swint v. Chambers County
Comm’n, 514 U.S. at 51). No such considerations are present in
this case. The Chaplains’ constitutional claims -- not even
presented on a cross-appeal -- are not intertwined with, nor
necessary to ensure meaningful review of, the statutory
privilege issue that is within our jurisdiction. We accordingly
decline to consider them.
+ + +
We reverse the district court's decision with respect to
promotion selection boards, vacate the district court's decision
with respect to continuation on active duty and selective early
retirement selection boards, and remand for further
proceedings consistent with this opinion. The petition for
mandamus is dismissed as moot.
A-24
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 03-533 September Term, 2004
Filed On: September 21, 2004
[849249]
Chaplaincy of Full Gospel Churches, et al.,
Appellees,
v.
Gordon R. England, Secretary of the U.S. Navy, et al.,
Appellants
BEFORE: Ginsburg, Chief Judge, and Edwards
Henderson, Randolph, Rogers,
Tatel, Garland, and Roberts, Circuit
Judges
ORDER
Upon consideration of appellees’ petition for rehearing
en banc, and the absence of a request by any member of the
court for a vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Michael C. McGrail
Deputy Clerk
A-25
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CiRCUIT
No. 03-533 September Term, 2004
. Filed On: October 4, 2004
[852610]
Chaplaincy of Full Gospel Churches, et al.,
Appellees,
Vv.
Gordon R. England, Secretary of the U.S. Navy, et al.,
Appellants
consolidated with 03-5334
ORDER
It is ORDERED on the court’s own motion, that the
order issued September 21, 2004 be amended to include the
consolidated case No. 03-5334.
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Michael C. McGrail
Deputy Clerk
A-26
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHAPLAINCY OF FULL GOSPEL
CHURCHES, et al.,
Plaintiffs,
Vv. : Civil Action No.:
: 99-2945 (RMU)
HANSFORD JOHNSON,
Acting Secretary of the Navy, et al., : Document Nos.:
: 125, 129, 134, 135
Defendants _ : 137, 150
FILED
ROBERT H. ADAIR et al., : SEP 2 - 2003
: Nancy Mayer
Plaintiffs, : Whittington, Clerk
: U.S. District Court
v.
: Civil Action No:
HANSFORD T. JOHNSON, : 00-0566 (RMU)
Acting Secretary of the Navy, et al., :
Defendants.
MEMORANDUM OPINION
GRANTING THE PLAINTIFFS’ MOTION TO COMPEL;
DENYING OTHER PENDING DISCOVERY MOTIONS; AND
DIRECTING THE PARTIES TO SUBMIT A REVISED
JOINT STATUS REPORT
I. INTRODUCTION
This matter comes before the court on the plaintiffs’
= ee
acre
A-27
motion to compel the testimony of Navy chaplain selection-
board personnel. The plaintiffs, current and former Navy
chaplains, bring this suit against the Secretary, other Navy
officials, and the Navy alleging that the Navy's policies and
practices - including the selection-board process - favor
liturgical Christians over non-liturgical Christians in violation
of the First and Fifth Amendments to the Constitution. The
plaintiffs now wish to depose former members of chaplain
selection boards. The defendants contend that the requested
testimony is not relevant and assert the deliberative-process
privilege as well as an absolute or qualified statutory
privilege. Because the requested testimony is relevant, the
deliberative-process privilege does not apply, and no statutory
privilege exists, the court grants the plaintiffs’ motion. The
court also denies other pending discovery motions and directs
the parties to submit a revised joint status report.
II. BACKGROUND’
The plaintiffs in this case allege that the Navy has
established, promoted, and maintained religious quotas and
other discriminatory practices in the Navy Chaplain Corps in
violation of the First and Fifth Amendments. Second Am.
Compl. at 2. According to the plaintiffs, until the 1980s, the
Navy hired chaplains from various faith groups based on
objective criteria, such as the relative percentage a religion
represented in the total American population. Id. at 23-24. In
‘The plaintiffs in both this action and the related case of Adair v. Johnson
allege that the Navy has established and maintained an unconstitutional
religious quota system for promotion, assignments, and retention of
Navy chaplains, in violation of the First and Fifth Amendments. Adair
Second Am. Compl.; Chaplaincy Second Am. Compl. Pursuant to the
parties’ joint recommendation, the court consolidated the two cases for
pretrial purposes. Order dated Sept. 26, 2000. Because the plaintiffs filed
their motion to compel in the Chaplaincy care, however, the court draws
the factual history from the Chaplaincy complaint. For a more detailed
discussion of the factual backgrounds of both cases, see Adair v. England,
183 F. Supp. 2d 31 (D.D.C. 2002) and Chaplaincy of Full Gospel Churches v.
Danzig, No. 99-2945, slip op. at 2-7 (Aug. 17, 2000).
A-28
response to a shift in America's religious demographics away
from liturgical Protestant denominations and toward non-
liturgical Christian faith groups, however, the Navy allegedly
abandoned its objective criteria and adopted a subjective
"thirds policy.” Id. at 24. Under the thirds policy, the Navy
allegedly reserved one-third of its Chaplain Corps slots for
Catholics, one-third for liturgical Protestants, and one-third
for members of all other religions (including non-liturgical
Christians). Id.
According to the plaintiffs, the Navy applied the thirds
policy not only to accessions,’ but to promotions and
retentions. Id. at 25. To identify officers for promotion and
early retirement, the Navy uses selection boards that evaluate
a chaplain's capacity and potential for further service. Id. at 28,
30 (citing 10 U.S.C. §§ 612 et seq.). The plaintiffs allege that to
maintain liturgical control of the Chaplain Corps, the Navy
uses the promotion and early retirement selection boards to
diminish non-liturgical chaplains’ opportunity for promotion
and to "thin down" the number of non-liturgical chaplains at
the higher ranks by forcing them out of service. Id. at 24, 28,
32-33. In support of their allegations, the plaintiffs set forth
various statistics and anecdotal evidence. E.g., id. at 4-9, 14-17,
19-20, Exs. 2-4, 6. The plaintiffs also point to a 1995 report ("the
Ellis Report") noting a "clear" and "disconcerting" institutional
bias against non-liturgical chaplains in key Navy positions
and a 1997 report ("the Stafford Report") indicating that one
promotion board "may have systematically applied a
denominational quota system, perhaps to ensure balanced
denominational representation across the Chaplain Corps." Id.
at 26-27, 32, Exs. 5, 8.
The plaintiffs filed their complaint in November 1999.
*The term “accessions” refers to individuals the Chaplain Corps brings
into the Navy, either active duty or reserve, as commissioned officers
during the current fiscal year. Adair v. England, 217 F. Supp. 2d 7,9 n.5
(D.D.C. 2002) (quoting the Defendants’ submission).
A-29
Two years later, in January 2001, the court's Calendar
Committee transferred this case and the related case of Adair
v. Johnson, Civil Action No. 00-0566, to this member of the
court. On January 10, 2002, the court issued a comprehensive
memorandum opinion granting in part and denying in part
the defendants’ motion to dismiss both consolidated cases.
Adair v. England, 183 F. Supp. 2d 31 (D.D.C. 2002). The court
concluded, inter alia, that the plaintiffs had successfully stated
a claim that the defendants’ policies and practices violated the
Constitution.’ Id.
On October 29, 2002, the plaintiffs filed their motion to
compel the testimony of Navy chaplain selection-board
personnel.’ They contend that the testimony of selection-board
personnel is material to their claims, but that the Navy has
refused to allow such personnel to testify on the grounds that
the proceedings of a selection board "may not be disclosed to
any person not a member of the board." Pls.’ Mot. to Compel
("Pls.' Mot.") at 1 (citing 10 U.S.C. §§ 618(f)). On May 1, 2003,
3Since then, the court has issued rulings on several additional motions.
E.g., Chaplaincy of Full Gospel Churches v. Johnson, 276 F. Supp. 2d 82, 2003
U.S. Dist. LEXIS 13984, 2003 WL 21940397 (D.D.C. Aug. 14, 2003);
Chaplaincy of Full Gospel Churches v. Johnson, 276 F. Supp. 2d 79, 2003 U.S.
Dist. LEXIS 13280, 2003 WL 21783173 (D.D.C. Aug. 4, 2003); Adair v.
Johnson, 216 F.R.D. 183; 2003 U.S. Dist. LEXIS 11930, 2003 WL 21659610
(.D.C. 2003); Adair v. England, 217 F. Supp. 2d 7 (D.D.C. 2002); Adair v.
England, 209 F.R.D. 5 (D.D.C. 2002); Adair v. England, 209 F.R.D. 1 (D.D.C.
2002); Adair v. England, 217 F. Supp. 2d 1 (D.D.C. 2002); Adair v. England,
193 F. Supp. 2d 196 (D.D.C. 2002).
‘although the title of the plaintiffs’ motion refers only to chaplain
promotion boards, the text of the motion refers to chaplain selection
boards generally. Pls.’ Mot. at 1 (referring to the need for the testimony of
those associated with "chaplain selection boards"), 2 (requesting the
release of those associated with "chaplain selection boards . . including
promotion, selective early retirement . . . and other statutory boards").
Like the defendants, the court therefore assumes that the plaintiffs seek
discovery of all chaplain selection boards. Defs.’ Opp'n at 2 n.3.
A-30
the plaintiffs filed a motion asking the court to find that the
defendants have waived their opposition to the plaintiffs’
motion to compel, or, in the alternative, to allow them to file
their waiver motion as,a supplemental pleading. ” Pls.’ Waiver
Mot. The plaintiffs also filed a motion to alter the limits for the
number of depositions and interrogatories, motions to refer
the motion to alter and future discovery motions to a
magistrate judge, and a motion to vacate existing discovery
dates. The court turns first to the plaintiffs’ motion to compel,
and then to the remaining discovery motions.
Ill. ANALYSIS
A. Legal Standard for a Motion to Compel®
Under Federal Rule of Civil Procedure 37(a), a party
may move the court in which the action is pending for an
order compelling disclosure. FED. R. CIV. P. 37(a). The party
must certify that the movant has conferred in good faith with
the party refusing disclosure in an effort to avoid court action.
Id. If the court grants the motion to compel, the court "shall,
after affording an opportunity to be heard, require the party
... whose conduct necessitated the motion . . . to pay to the
"The plaintiffs style their motion as a "Notice of Defendant's [sic])Waiver
of Opposition to Plaintiffs’ Motion for an Order Compelling the Secretary
of the Navy to Release Board Personnel from Their Oath of Secrecy or in
the Alterative a Motion to File a Supplemental Pleading.” Pls.’ Waiver
Mot. at 1.
° In this case, although the plaintiffs do not style their motion as a motion
to compel, everything about their motion is characteristic of a Rule 37
motion to compel. FED. R. Civ. P. 37(a). Specifically, the plaintiffs seek to
compel certain disclosures by the defendants. Pls.’ Mot. at 1; accord FED. R.
Civ. P. 37(a)(2). In addition, following Rule 37 procedures, the plaintiffs
"have requested on several occasions that the Secretary release board
members from their oath [and the] Navy has refused, necessitating this
motion." Pls.’ Mot. at 1-2; accord FED. R. CIV. P. 37(a)(2). Accordingly, the
defendants view the motion as a Rule 37 motion to compel, and the court
joins them in that view. E.g., Defs.' Opp'n at 32 & Ex. H.
ee ew ee
I Ni Bay ti PD
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moving party the reasonable expenses incurred in making the
motion, including attorney's fees." Id. 37(a)(4); see also Standing
Order { 9. This award of expenses is intended to "deter the
abuse implicit in carrying or forcing a discovery dispute to
court when no genuine dispute exists." Cobell v. Norton ("Cobell
I"), 213 F.R.D. 16, 29 (D.D.C. 2003) (quoting FED. R. Civ. P.
37(a)(4) advisory committee's note).
A court may not award Rule 37 expenses, however, if
it finds, inter alia, that "the opposing party's nondisclosure,
response, or objection was substantially justified." FED. R. Civ.
P. 37(a)(4). An opposing party's objection qualifies as
‘substantially justified" if "there is a genuine dispute or if
reasonable people could differ as to the appropriateness of the
contested action." Pierce v. Underwood, 487 U.S. 552, 565 (1988);
Cobell v. Norton (“Cobell IT"), 213 F.R.D. 48, 61 (D.D.C. 2003); see
also 8A FED. PRAC. & PROC. § 2288 (stating that an objection to
a motion is substantially justified "if the motion raised an issue
about which reasonable people could genuinely differ on
whether a party was bound to comply with a discovery rule");
accord Pub. Citizen Health Research Group v. Young, 909 F.2d
546, 552 (D.C. Cir. 1990) (stating, in the context of the Equal
Access to Justice Act, that the question "is whether there was
a reasonable basis in fact and law for the government's
litigating position").
A trial court enjoys broad discretion in choosing a
sanction under Rule 37. Sturgis v. Am. Ass'n of Retired
Persons,1993 WL 518447, at *1 (D.C. Cir. 1993) (per curiam).
That said, "the central requirement of Rule 37 is that any
sanction must be just." Bonds v. District of Columbia, 93 F.3d
801, 808 (D.C. Cir. 1996).
B. The Parties' Arguments
The defendants advance three arguments in opposition
to the plaintiffs’ motion to compel. First, the defendants argue
that the testimony the plaintiffs seek is not relevant in light of
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the statistical evidence before the court, and thus is not
discoverable under Federal Rule of Civil Procedure 26(b).
Defs.' Opp'n at 5-16 (citing FED. R. Civ. P. 26(b)(1)). Second,
the defendants contend that even if the requested testimony
is relevant, it is absolutely protected from disclosure pursuant
to 10 U.S.C. § 618(f), the statute barring disclosure of selection-
_board deliberations. Id. at 16-19. Finally, the defendants state
that even if section 618(f) does not act as an absolute bar to
discovery, the requested testimony is protected by a qualified
statutory privilege or the deliberative-process privilege
because the government's interest in maintaining
confidentiality of board deliberations far outweighs the
plaintiffs’ need for the requested testimony. Id. at 19-31.
The plaintiffs counter each of these arguments.
Marshaling statistical evidence of their own, the plaintiffs
assert that the testimony they seek is relevant under Rule
26(b). Pls.’ Reply at 2-10. Moreover, according to the plaintiffs,
section 618(f) does not serve as an absolute bar to disclosure
for purposes of discovery. Pls.' Mot. at 8-9; Pls.' Reply at 11-13.
Nor, in the plairitiffs' view, does a qualified statutory privilege
apply, as the plaintiffs’ need for the testimony outweighs any
countervailing factors. Pls.’ Mot. at 16-19. As for the
deliberative-process privilege, the plaintiffs state that it cannot
apply because the integrity of the deliberative process here -
the Navy chaplain selection boards - is squarely at issue. Pls.’
Mot. at 5-8.
C. The Court Concludes That
the Requested Testimony Is Relevant
1. Relevance Under Federal Rule of Civil Procedure
26(b)(1)
Rule 26(b)(1) authorizes discovery "regarding any
matter, not privileged, that is relevant to the claim or defense
of any party.” FED. R. Civ. P. 26(b)(1). The term "relevance" is
broadly construed, and "relevant information need not be
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admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence." Id.;
Food Lion, Inc. v. United Food & Comm‘! Workers Int'l Union, 103
F.3d 1007, 1012 (D.C. Cir. 1997); see also Smith v. Schlesinger,
513 F.2d 462, 473 n.37 (D.C. Cir. 1975) (noting that "a party
may discover information which is not admissible at trial if
such information will have some probable effect on the
organization and presentation of the moving party's case").
Put another way, "[a] showing of relevance can be viewed as
a showing of need[, as] for the purpose of prosecuting or
defending a specific pending civil action, one is presumed to
have no need of matter not relevant to the subject matter
involved in the pending action." Friedman v. Bache Halsey
Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984). That
said, relevancy does not encompass discovery of information
with "no conceivable bearing on the case." Id. (citing 8 FED.
PRAC. & PROC.2d § 2008). A trial court enjoys considerable
discretion over discovery matters. Id.; United States v. Krizek,
192 F.3d 1024, 1029 (D.C. Cir. 1999).
2. The Testimony of Selection-Board Personnel
Is Relevant Under Rule 26(b)(1)
The plaintiffs seek to obtain testimony from former
selection-board personnel with first-hand knowledge of
various board «ieliberations. Pls.’ Mot. at 1-2 & Exs. 4-5. Both
here and in the Adair case the plaintiffs claim that the Navy
has established, promoted, and maintained religious quotas
and other discriminatory practices favoring liturgical
Christian chaplains over non-liturgical chaplains in violation
of the First and Fifth Amendments. See generally Second Am.
Compl.; Adair Second Am. Compl. Throughout this litigation,
the plaintiffs repeatedly have cited the selection-board process
as a prime example of the Navy's allegedly discriminatory
practices. E.g., Second Am. Compl. at 27-28, 30-32; see also, e.g.,
Chaplaincy of Full Gospel Churches v. Johnson, 2003 WL
21940397, at *1 (D.D.C. Aug. 14, 2003); Adair v. Johnson, 216
F.R.D. 183, 2003 WL 21659610, at *3 (D.D.C. July 15, 2003);
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Adair v. England, 217 F. Supp. 2d 7, 9-14 {D.D.C. 2002); Adair v.
England, 209 F.R.D. 5, 10 (D.D.C. 2002); Adair v. England, 183 F.
Supp. 2d 31, 42 (D.D.C. 2002). It is hard to argue that the
testimony of former selection-board personnel with direct
knowledge of board proceedings is not "relevant" and
“reasonably calculated to lead to the discovery of admissible
evidence" regarding alleged Navy discrimination against non-
liturgical chaplains in those very proceedings. FED. R. CIv. P.
26(b)(1); Food Lion, 103 F.3d at 1012; accord Alexander v. Fed.
Bureau of Investigation, 186 F.R.D. 170, 174 (D.D.C. 1999)
("Alexander I") (granting the "Filegate" plaintiffs’ motion to
compel testimony because their proposed questions were
reasonably calculated to lead to the discovery of a White
House connection to the release of Linda Tripp's security information).
The defendants, however, attempt to argue the point>
Specifically, the defendants contend that "anecdotal evidence"
of board proceedings cannot prove the plaintiffs’ allegations
of religious bias, and thus that the requested testimony cannot
be relevant. Defs.' Opp'n at 13-14 (listing cases holding that
anecdotal evidence is insufficient to prove a pattern or practice
of discrimination). But this logic would turn Rule 26 on its
head by requiring the plaintiffs to prove their claim before
permitting them to seek discovery. Although the defendants
may believe that the plaintiffs’ evidence is insufficient to
support their claims, "discovery is not to be denied because it
relates to a claim or defense that is being challenged as
insufficient.” 8 FED. PRAC. & PROC. C.2d § 2008. Accordingly,
the court concludes that the plaintiffs’ requested testimony is
relevant within the meaning of Rule 26(b)(1). FED. R. Civ. P.
26(b)(1); Food Lion, 103 F.3d at 1012.
D. The Court Concludes that the
Government-Misconduct Exception
Bars Application of the Deliberative-Process Privilege
1. The Deliberative-Process Privilege
ra
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The general purpose of the deliberative-process
privilege is to "prevent injury to the quality of agency
decisions.” Nat'l Labor Relations Bd. v. Sears, Roebuck & Co., 421
U.S. 132, 151 (1975). The three policy objectives underlying the
privilege are (1) to encourage creative and candid discussions
within an agency and thereby improve the quality of agency
policy decisions; (2) to protect against premature disclosure of
proposed policies before final adoption, and (3) to protect the
integrity of the decision-making process by ensuring that
officials are judged by their final decision, rather than for
matters considered beforehand. Jordan v. Dep't Justice, 591 F.2d
753, 772-73 (D.C. Cir. 1978). Toward that end, the privilege
protects "documents and other materials that would reveal
advisory opinions, recommendations, and deliberations
comprising part of a process by which governmental decisions
and policies are formulated." In re Sealed Case, 121 F.3d 729,
737 (D.C. Cir. 1997) (quoting Sears, 421 U.S. at 150).
Accordingly, for the privilege to apply, the government must
show that the material is both predecisional and deliberative.
Id.
Because the deliberative-process privilege is a qualified
privilege, it may be overcome by a sufficient showing of need
by the party seeking discovery. Id. Once the government has
asserted the privilege, the court must balance the party's need
against the harm that may result from disclosure, taking into
account the relevance of the evidence, the availability of other
evidence, the seriousness of the litigation and the issues
involved, the role of the government in the litigation, and the
possibility of future timidity by government employees. Id. at
737-38; First E. Corp. v. Mainwaring, 21 F.3d 465, 468 n.5 (D.C.
Cir. 1994).
When there is any reason to believe that government
misconduct has occurred, however, our court of appeals has
made clear that the deliberative-process privilege disappears
altogether. In re Sealed Case, 121 F.3d at 746; In re Subpoena
Duces Tecum Served on the Office of the Comptroller of the
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Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998) (noting that "if
the plaintiff's cause of action is directed at the government's
intent .. . it makes no sense to permit the government to use
the privilege as a shield"); see also Waters v. U.S. Capitol Police
Bd., 2003 WL 21004636, at *9 (D.D.C. May 6, 2003) (stating that
"it is iriconceivable" that Congress intended the deliberative-
process privilege to apply to information bearing on whether
an agency engaged in discrimination); Dominion Cogen D.C.,
Inc. v. District of Columbia, 878 F. Supp. 258, 268 (D.D.C. 1995)
(finding that the privilege does not apply where the plaintiff's
allegations "place the deliberative process itself directly in
issue"). Under this government-misconduct exception, the
court does not engage in the usual balancing test, but simply
concludes that the privilege does not "enter the picture at all."
In re Subpoena Duces Tecum, 145 F.3d at 1425; see also Alexander
I, 186 F.R.D. at 177 (rejecting as "incorrect" the government's
argument that the balancing test applies in the face of
identifiable government misconduct). To invoke the
government-misconduct exception, the party seeking
discovery must provide an adequate factual basis for believing
that the requested discovery would shed light upon
government misconduct. Judicial Watch of Fla. v. Dep't of
Justice, 102 F. Supp. 2d 6, 15-16 (D.D.C. 2000); Alexander v. Fed.
Bureau of Investigation, 186 F.R.D. 154, 164 (D.D.C. 1999)
("Alexander II").
2. The Plaintiffs Have Provided an Adequate Factual Basis
for Their Belief Regarding Government Misconduct
The defendants argue that the deliberative-process
privilege protects the requested testimony because selection-
board proceedings are both predecisional and deliberative.
Defs.’ Mot. at 20-21. Moreover, the defendants assert that the
government-misconduct exception does not apply because the
plaintiffs have provided no "reason to believe" that the
requested testimony would shed light on alleged Navy
sich pemaniaan
9 ae la
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discrimination against non-liturgical chaplains.’ Id. at 22.
Specifically, the defendants contend that the plaintiffs’
statistics "bear out no systemic discrimination against non-
liturgicals as a class." Id. The plaintiffs dispute the defendants’
arguments, and point to evidence that they believe
demonstrates the Navy's misconduct. The plaintiffs cite to the
Stafford Report, along with a 1999 report by the inspector
general of the Department of Defense ("DoD IG report") and
a 1998 investigation by the inspector general of the Navy
("Navy IG report"), all of which the plaintiffs say raise
questions about the impartiality of the chaplain selection
boards. Pls.' Mot. at 6, 10-13 & Ex. 2; Pls.' Reply at 3. The
plaintiffs also cite to various statistics that they believe
demonstrate the application of the thirds policy to chaplain
promotions. Pls.’ Mot. at 13-16 & Exs. 9-10.
Without addressing the merits of the plaintiffs’ claims,
the court concludes that the plaintiffs have provided an
adequate factual basis for their belief that the requested
testimony will provide evidence of government misconduct.
Alexander II, 186 F.R.D. at 165. The various reports and
statistics cited by the plaintiffs are adequate at this stage to
support a belief that the Navy engaged in discrimination
against non-liturgical chaplains.* Id. (finding that the inclusion
”As an aside, the defendants take issue with the plaintiffs’
characterization of government misconduct as an automatic exception to
the deliberative-process privilege. Defs.' Mot. at 22 n.9 (adopting the
position of the government defendants in Alexander I, 186 F.R.D. at 177).
The defendants suggest that "the proper analysis of the deliberative
process privilege would involve the court's consideration of government
misconduct as a factor in balancing of the interests, but not as an
automatic exception to application of the deliberative process privilege."
Id. In ligh: of the clear statements by our court of appeals, however, this
court agrees with Judge Lamberth's conclusion that the defendants’
suggestion is "simply incorrect." Alexander I, 186 F.R.D. at 178.
’The court's conclusion that the plaintiffs’ statistics provide an adequate
basis for a belief in Navy misconduct does not pass judgment on the
relative strengths of the parties’ statistics. Alexander II, 186 F.R.D. at 164-
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of certain misinformation in draft responses to members of
Congress about Filegate provided an adequate basis to be lieve
that government misconduct had occurred); cf. Judicial Watch;
102 F. Supp. 2d at 15-16 (holding that the plaintiff's bare and
unsupported allegation of misconduct by the Attorney
General did not provide an adequate basis to believe that
discovery would shed light on government misconduct).
Because the plaintiffs have adequately provided a reason to
believe that Navy misconduct has occurred, the deliberative-
process privilege disappears and cannot prevent discovery of
the requested testimony. In re Subpoena Duces Tecum, 145 F.3d
at 1424; In re Sealed Case, 121 F.3d at 746.
E. The Court Concludes that Section 618(f)
Does Not Bar Limited Discovery
1. Statutory Bans on Publication’
"It is well-settled in this circuit that general statutory
~
65 (distinguishing between proving misconduct and providing a basis for
a belief in misconduct). The court is acutely aware of the disagreements
between the parties over the use and accuracy of statistical data
regarding, inter alia, Navy chaplain accessions and promotions. E.g.,
Adair, 217 F. Supp. 2d at 15. In fact, toward that end, the court has
stressed that "a thorough discovery period will greatly assist the court in
evaluating the merits of the parties’ claims." Id.
*In their analysis, the parties cite to St. Regis and Women in Science, two
cases that analyze statutes barring disclosure of confidential reports. Pls.’
Mot. at 8 (citing St. Regis Paper Co. v. United States, 368 U.S. 208 (1962) and
Ass'n for Women in Science v. Califano, 566 F.2d 339, 346 (D.C. Cir. 1977));
Defs.' Opp'n at 16-19 (same). In contrast to section 618(f), however, the
statutes at issue in St. Regis and Women in Science focus on disclosure of
confidential reports received from citizens. Defs.' Opp'n at 18; St. Regis,
368 U.S. at 295; Women in Science, 566 F.2d at 343, 346. Because the
confidential-reports privilege is not at issue in this case, however, the
court instead looks to authority addressing with statutes that bar the
publication or disclosure of information. E.g., Laxalt v. McClatchy, 258 USS.
App. D.C. 44, 809 F.2d 885, 887 n.7 (D.C. Cir. 1987) (examining Privacy
Act proscriptions on disclosure of records).
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bans on publication do not bar limited disclosure in judicial
proceedings, including court-supervised discovery." Laxalt v.
McClatchy, 258 U.S. App. D.C. 44, 809 F.2d 885, 889 (D.C. Cir.
1987). Two factors underlie this conclusion. First, full access by
the courts and litigants to relevant information is “an
important foundation for the achievement of justice by the
courts in individual lawsuits." Freeman v. Seligson, 132 U.S.
App. D.C. 56, 405 F.2d 1326, 1348 (D.C. Cir. 1968). Second, the
purpose of statutory publication bans is not to prevent
discovery, but rather to prevent the broadcasting of sensitive
information to the general public. Friedman, 738 F.2d at 1343-
44. Moreover, our court of appeals has declined to infer a
qualified privilege from statutory publication bans, given that
“wh re Congress has thought it necessary to protect against
court use of records [it] has expressly so provided by specific
language." Id. at 1343 (internal quotations omitted); see also
Laxalt, 809 F.2d at 889 (stating that "we . . . refuse[] to infer the
creation of a qualified privilege from congressional silence’).
Instead, Congress "must clearly and strongly indicate its intent
to contradict [the] broad objective favoring disclosure in
judicial proceedings." Friedman, 738 F.2d at 1343 (internal
quotations omitted).
Although statutory publication bans do not bar
discovery, they are relevant in determining the appropriate
scope and manner of discovery. Laxalt, 809 F.2d at 889. The
interests protected by statutory publication bans "reflect a
congressional judgment that certain delineated categories of
documents may contain sensitive data which warrants a more
considered and cautious treatment." Id. (quoting Friedman, 738
F.2d at 1344). Therefore, in exercising its supervision of
discovery, a court “must accord the proper weight to the
policies underlying these statutory protections, and compare
them with the factors supporting discovery in a particular
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lawsuit.""° Id. A court then may use traditional devices - such
as protective orders or in camera inspection - to shape a
discovery plan that will give effect to liberal discovery rules
without threatening the interests protected by statutory
publication bans. Id. (noting that "the courts can limit . . . the
persons having access to information, their freedom to discuss
[that] information . . . and the uses to which the information
may be put").
2. Section 618(f) Does Not Bar Limited
Disclosure in Judicial Proceedings
As noted, the statute at issue here is section 618, which
governs military board deliberations for active-duty service
members, including chaplains. 10 U.S.C. § 618. Section 618(f)
states that "except as authorized or required by this section,
proceedings of a selection board convened under section
611(a) of this title may not be disclosed to any person not a
member of the board." Id. To comply with section 618(f), all
selection-board personnel take an oath swearing or affirming
that they "will not divulge the proceedings of this board
except as authorized or required by the Secretary of the Navy
or higher authority." Pls.' Mot. Ex. 1.
The defendants assert that section 618(f) creates a
blanket prohibition against disclosure (including discovery) of
selection-board proceedings. Defs.' Opp'n at 16-17. Stressing
One court has interpreted Friedman's "proper weight" analysis as
requiring the classic balancing of confidentiality - vs. - need as a
prerequisite to allowing discovery to proceed. Gould, Inc. v. Mitsui Mining
& Smelting Co., Ltd., 139 F.R.D. 244, 246 (D.D.C. 1991) (citing Friedman, 738
F.2d at 1344). A close reading of Laxalt reveals that the court's “proper
weight" analysis serves not as a prerequisite to discovery, however, but
simply as an aid to the court in determining how to exercise its traditional
authority to limit disclosure. Laxalt, 809 F.2d at 889-90 (stating that “a test
of necessity [is not] a prerequisite to initiating discovery of records" and
that "the need to balance conflicting interests is entirely different from the
proposition . . . that [records] are exempt . . . from civil discovery absent a
specific showing of need" (emphasis in original)).
A-41
Congress’ "clear direction that the deliberations of the boards
be disclosed to no person not a member of the board," the
defendants state that section 618(f) "addresses government
information about the official conduct of military offices in a
sensitive and important matter, and expressly protects that
information to anyone, save the Secretary.” Id. at 18-19.
Alternatively, the defendants argue that section 618(f) creates
a qualified privilege, and that the plaintiffs’ need for the
requested testimony does not outweigh the government's
interest in preventing its disclosure. Id. at 19, 26. The plaintiffs
dispute both arguments. First, the plaintiffs state that section
618(f) does not create an absolute bar to discovery. Pls.' Mot.
at 8-9. Second, the plaintiffs contend that even if section 618(f)
creates a qualified privilege, the court should extend the
government-misconduct exception to section 618(f) and allow
discovery. Id. at 9.
Following the directive of our court of appeals, the
court looks to the plain language of section 618(f) to determine
whether it creates an absolute or qualified privilege against
discovery. Laxalt, 809 F.2d at 889; Friedman, 738 F.2d at 1343.
Because section 618(f) does not contain specific language
barring discovery, and because of the circuit's emphasis on
providing litigants full access to relevant information, the
court concludes that section 618(f) does not create an absolute
or qualified privilege barring discovery of selection-board
proceedings. Id. The court therefore grants the plaintiffs’
motion to compel.
Remaining before the court, however, is the relevance
of section 618(f) in determining the appropriate scope and
manner of discovery. Laxalt, 809 F.2d at 889. Toward that end,
the court must weigh the policies underlying section 618(f)
against the factors supporting discovery here. Id.
Looking first to the policies underlying section 618(f),
the court notes that the legislative history of section 618(f),
although somewhat sparse, indicates that Congress enacted
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the provision "to encourage candid discussions free from
outside interference.” S. REP. 102-482, at 2 (1992); accord Defs..'
Opp'n Ex. H ("England Decl.") (stating that "free, uninhibited,
and candid deliberations by selection boards are . . . vital to
the effective functioning of the selection board process" and
that "release of information regarding these proceedings to the
public will severely undermine the [Navy's] ability to
effectively operate its promotion and selective early retirement
systems”). At the same time, the legislative history of the act
that established section 618(f) as part of the selection-board
process reveals Congress’ steadfast interest in ensuring a
uniform and merits-based selection system. E.g., H.R. REP. 96-
1462, at 3, 66-69 (1980), reprinted in 1980 U.S.C.C.A.N. 6333
(describing the new uniform selection-board procedures of the
1980 Defense Officer Personnel Management Act).
Congressional pronouncements since then have emphasized
the need to maintain "the integrity of a selection system that
provides all officers with a fair opportunity to be selected on
merit" and to "keep the promotion system fair and free from
manipulation." 133 CONG. REC. $10642-02 (daily ed. July 24,
1987) (statement of Sen. Nunn); see also S. REP. No. 102-1, at 24
1991) (indicating that "the integrity of the promotion process
is essential to the integrity of the officer corps"); S. REP. No.
102-113 (1991) (stating that "[board] selections must be fair,
impartial and based upon demonstrated potential instead of
subjective criteria, and they must be seen as such by our
officer corps"). Taken together, these actions indicate that
Congress views section 618(f) as a means of promoting frank
discussions among selection-board personnel, but does so in
the context of ensuring the overall integrity of the armed
forces selection systein. Laxalt, 809 F.2d at 889.
Turning to the factors supporting discovery, the court
notes that, given the confidentiality created by the oath, only
selection-board personnel - the witnesses to the decision-
making process - have direct knowledge of possible religious
discrimination in the selection-board process. The defendants
suggest that the plaintiffs instead pursue discovery regarding
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the Navy's allegedly discriminatory intent by interviewing the
Chaplain Corps leadership and regarding the Navy's bias by
testing the accuracy of the defendants’ promotion board
statistics. Defs.' Opp'n at 30. But these alternatives do not
constitute direct evidence, and this court has already indicated
that it would defer until after discovery its decision as to how
much of the plaintiffs’ initial showing of a suggestion of
denominational preference must be composed of statistical
evidence. Adair, 217 F. Supp. 2d at 15 n.9.
Accordingly, the scope and manner of discovery in this
case must take into account the defendants’ interest in
preventing a chill in selection-board discussions, the
defendants’ interest in maintaining integrity in selection-board
proceedings, and the plaintiffs’ interest in direct evidence of
possible religious discrimination. Laxalt, 809 F.2d at 889. The
court therefore exercises its supervisory authority to permit
the plaintiffs to conduct limited discovery of selection-board
personnel in a manner that is focused and that minimizes the
possibility of harm to the selection-board process. Id. at 889-
90. Rather than impose a discovery plan from above, however,
the court directs the parties - who know their nature and
extent of their interests far better than the court - to jointly
propose a plan of discovery regarding the testimony of
selection-board personnel.
Finally, because the court grants the plaintiffs’ motion
to compel, Rule 37(a)(4) directs the court to require the
defendants to pay reasonable expenses unless the defendants’
objection was "substantially justified." FED. R. CIv. P. 37(a)(4).
In this case, the court concludes that the defendants’
opposition to the plaintiffs’ motion to compel was
substantially justified because "reasonable people could differ"
on whether the defendants, having asserted a deliberative-
process or statutory privilege, were bound to comply with
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discovery rules." Pierce, 487 U.S. at 565; accord In re Multi-Piece
Rim Prods. Liability Litig., 653 F.2d 671, 680 (D.C. Cir. 1981)
(affirming the district court's finding of substantial
justification in part because of the subtlety of the legal issues
presented). Accordingly, awarding reasonable expenses
against the defendants would not be just and would not serve
the rule's purpose of deterring unwarranted discovery
objections. Bonds, 93 F.3d at 808; Cobell I, 213 F.R.D. at 29; FED.
R. Clv. P. 37(a)(4) advisory committee's note.
F. The Court Denies Other Pending Discovery Motions and
Directs the Parties to Submit a Revised Status Report
The court now turns to the plaintiffs’ motion asking the
court to find that the defendants have waived their opposition
to the plaintiffs’ motion to compel, or, in the alternative, to
allow them to file their waiver motion as a supplemental
pleading. In this waiver motion, the plaintiffs raise two
concerns. First, the plaintiffs theorize that the def-ndants have
waived any privilege by propounding an interrogatory that
seems to direct the plaintiffs (including those plaintiffs who
served as selection-board personnel) to divulge selection-
board proceedings in violation of both section 618(f) and their
oath. Pls.’ Waiver Mot. at 2-11. Second, the plaintiffs state that
as a result of the defendants’ actions, they face a Hobson's
choice of violating discovery rules or their oath. Id. at 10-11. In
light of the court's decision today, the plaintiffs’ motion is
moot, and the court denies it as such.”
"The court also notes that the parties raised their disagreement regarding
discovery of selection-board proceedings early on, giving the court ample
advance notice of the existence and non-frivolous nature of the dispute.
E.g., Joint LCvR 16.3 Report dated Feb. 4, 2002.
"As an aside, the court notes that any Hobson's choice disappeared as
soon as the plaintiffs consulted with the defendants. Prior to the filing of
the motion, the defendants’ counsel attempted both orally and in writing
to clarify the disputed interrogatory. Defs.' Resp. at 4 & Ex. A. These
communications from the defendants’ counsel should have resolved any
dilemma allegedly facing the plaintiffs as a result of the defendants’
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As for the remaining discovery motions, the court
denies without prejudice the plaintiffs' motion to alter the
limits for the number of depositions and interrogatories, along
with the plaintiffs’ motions to refer that motion and future
discovery motions to a magistrate judge.’ The court also
denies as moot the plaintiffs' motion to vacate the discovery
dates set forth in the parties’ October 1, 2002 joint status
report."
Accordingly, the court directs the parties to submit a
revised joint status report that outlines not only the parties’
plan of discovery regarding the testimony of selection-board
personnel (as described in part III.E.2 supra), but proposes an
amended discovery schedule that takes into account the
parties’ progress to date and the current posture of the case.”°
Because both parties have indicated an eagerness to move
forward on discovery, the court expects the parties to actively
continue working on discovery matters as they draft their
amended schedule. E.g., Defs.' Resp. to Pls.’ Status Report &
Mot. ("Defs.' Resp.") at 3 (stating that "defendants oppose an
infinite, unending discovery timetable that gives plaintiffs no
incentive whatsoever to diligently pursue discovery and bring
this matter to a decision on the merits"); Pls.’ Reply to Defs.'
Resp. at 2 (stating that "delay [in discovery] only harms
plaintiffs and helps the defendants").
interrogatory.
'5On June 26, 2003, the court granted the parties’ request to hold the
plaintiffs’ motion to alter in abeyance until the parties complied with the
court's Standing Order. Order dated June 26, 2003.
‘4 Although the court has not issued a formal schedule for discovery in
this case, the parties established a discovery schedule as part of their
court-ordered October 1, 2002 status report, and that schedule has guided
the parties’ efforts to date. Status Report dated Oct. 1, 2002.
The court expects that in this effort, the parties will stipulate to
reasonable alterations to the deposition and interrogatory limitations, and
will resolve any outstanding issues regarding expert disclosures.
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Finally, to keep this case on track, the court puts the
parties on notice that it expects a maximum of cooperation
and a minimum of filings from the parties. Toward that end,
the court will henceforth strictly enforce its Standing Order
and the federal and local discovery rules, imposing sanctions
when warranted.
IV. CONCLUSION
For the foregoing reasons, the court grants the
plaintiffs’ motion to compel and denies other pending
discovery motions. An order consistent with this
Memorandum Opinion is separately and contemporaneously
issued this 2nd day of September, 2003.
Ricardo M. Urbina
United States District Judge
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBERT H. ADAIR, et al.
Plaintiffs,
v. : Civil Action No.:
: 00-0566 (RMU)
GORDON R. ENGLAND,
Secretary of the Navy, et al., : Document Nos.:
: 5, 7,8, 11, 19,23
Defendants’ :
FILED
. CHAPLAINCY OF FULL : JAN 10 2002
GOSPEL CHURCHES, et al. : Nancy Mayer
| : Whittington, Clerk
. Plaintiffs, | U.S. District Court
v.
: Civil Action No:
HANSFORD T. JOHNSON, : 99-2945 (RMU)
Acting Secretary of the Navy, et al., : Document Nos.:
‘Zo, 42
Defendants.
MEMORANDUM OPINION
DENYING IN PART AND GRANTING IN PART THE DEFENDANTS'
MOTION TO DISMISS; DENYING AS MOOT THE DEFENDANTS'
MOTION TO HOLD THE PROCEEDINGS IN ABEYANCE; DENYING
WITHOUT PREJUDICE THE PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDGMENT; DENYING WITHOUT PREJUDICE THE
PLAINTIFFS' MOTION TO ALLOW A CHAPLAIN PLAINTIFF TO
USE A PSEUDONYM
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I. INTRODUCTION
These cases incite a probing scrutiny of the First
Amendment's Establishment and Free Exercise Clauses. While
the vast majority of First Amendment religion cases involve
laws or governmental policies that allegedly promote or
inhibit religion in relation to the secular realm (e.g., school-
voucher cases, prayer-in-school cases), the instant cases
implicate the more unusual claim that governmental policies
favor one religion over another.
Although the above-captioned cases are not
consolidated for all purposes, they have been consolidated for
purposes of the pending motions.' In the Chaplaincy case, the
plaintiffs are an endorsing agency for military chaplains and
seven of its individual members. In the Adair case, the
plaintiffs are 17 current and former non-liturgical chaplains in
the Department of the Navy ("the defendants", "Navy", or
"DON"). In both cases, the plaintiffs allege that the Navy has
established and maintained an unconstitutional religious
quota system for promotion, assignments, and retention of
Navy chaplains, in violation of both the Establishment Clause
and the Free Exercise Clause of the First Amendment, and the
Equal Protection Clause of the Fifth Amendment. Specifically,
the plaintiffs allege that the Navy's policies and practices favor
liturgical Christian chaplains over non-liturgical Christian
chaplains.
The principal motion before the court is the
defendants’ motion to dismiss the complaint in the Adair case.
' In January 2001, the court's Calendar Committee transferred both of
these cases from Judge June Green to this member of the court. In an
order dated September 26, 2000, Judge Green accepted the parties’ joint
recommendation and consolidated the two cases for purposes of the
pending motions. See Order dated September 26, 2000. The parties agree
that their briefs on the Adair case control and that the court should apply
its rulings on the Adair motions to the Chaplaincy case as well. See
Stipulation dated September 25, 2000.
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For the reasons that follow, the court will deny in part and
grant in part the defendants’ motion to dismiss. In addition,
because the court declines to convert the defendants’ motion
to dismiss into a motion for summary judgment, the court will
deny without prejudice the plaintiffs’ motion for partial
summary judgment and will order a briefing schedule on the
piaintiffs' motion.
Moreover, because the court will now resolve the
defendants’ motion to dismiss, the court will deny as moot the
defendants’ motion to hold in abeyance the proceedings on the
plaintiffs’ motion for partial summary judgment until the
court resolves the defendants' motion to dismiss. Lastly, the
plaintiffs filed a motion to allow one chaplain plaintiff, who
feared harassment and retaliation, to use a pseudonym to
pursue this litigation. Because the plaintiffs filed a motion for
class certification, which would render the motion for a
pseudonym moot, the court will deny without prejudice the
plaintiffs’ motion to allow one plaintiff to use a pseudonym
and will revisit the issue, if necessary, after the court has ruled
on the plaintiffs’ motion for class certification.
II. BACKGROUND
A. Factual History’
1. The Navy Chaplain Corps
Congress provided for the organization of the Navy
Chaplain Corps, whose members are commissioned Naval
officers who possess specialized education, training, and
experience "to meet the spiritual needs of those who serve in
? For purposes of the instant motion to dismiss, the court must accept all
the complaint's well-pled factual allegations as true and draw all
reasonable inferences in the plaintiff's favor. See Scheuer v. Rhodes, 416
U.S. 232, 236 (1974), overturned on other grounds by Harlow v. Fitzgerald,
457 U.S. 800 (1982). Indeed, the defendants acknowledge this point in
their motion to dismiss. See Mot. to Dismiss at 4 n. 1.
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the Navy and their families." See Adair First Am. Compl.
("Compl.") at 21; see also Mot. to Dismiss at 4 (citing 10 U.S.C.
§ 5142); Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985) (rejecting
Establishment Clause challenge to Army chaplaincy program
since such program was necess
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