# Petition for Writ of Certiorari — Chaplaincy of Full Gospel Churches v. England > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1235%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 543 U.S. 1152 ## Text (! 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, neces [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1235%3A1. Public record. Not legal advice.