eBooks, Databases, and other searchable on-line content from askSam


	Contents Prev Next Last

Title In RE England

Argued April 22, 2004 Decided July 27, 2004

Subject Judicial Restraint; Legal Analysis

Previous Opinion | Contents | Next Opinion

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

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.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

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 be disclosed to any person not a

member of the board,'' 10 U.S.C. § 618(f), and board mem-

bers take an oath of confidentiality to implement this require-

ment. Certain current and former Navy chaplains and their

particular endorsing agency, the Chaplaincy of Full Gospel

Churches (CFGC), sued the Navy, alleging that it discrimi-

nates 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 lead-

ing to the challenged decisions.

The district court ruled that Section 618(f) did not preclude

disclosure of selection board proceedings through civil discov-

ery, because Congress had not expressly addressed the ques-

tion 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 Section 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 express-

ly 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 weath-

er or other 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 responsi-

bility 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 Ser-

vices ¶ 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, counsel-

ing, and support. See Marine Corps Warfighting Publication

6-12, Religious Ministry Support in the United States Ma-

rine Corps 1-4, 1-5 (Dec. 12, 2001). In addition to this

religious ministry, Navy chaplains also provide ethics instruc-

tion 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, Chap-

lains Manual 1-21-3 (Dep't of the Navy Oct. 3, 1973). A

chaplain must satisfy not only the normal physical and edu-

cational 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 profession-

ally qualified to represent that faith group within the military

Chaplaincy.'' Chaplain Candidate Program Officer Handbook

Glossary; see Directive ¶¶ 5.15.2. Ecclesiastical endorse-

ment 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 reli-

gious 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, Method-

ist, 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, Evan-

gelical, 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) promotion; (2)

continuation on active duty; and (3) selective early retire-

ment. 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 offi-

cers -- 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 deci-

sions 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 TTT 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 pro-

motion, (2) ``information or guidelines relating to the needs of

the Navy for officers having particular skills,'' and (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 TTT consid-

ers 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 recommenda-

tions 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 proce-

dures. 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 selection 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, mem-

bers 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 members to take an oath to ``not divulge the proceed-

ings of this board except as authorized or required by the

Secretary of the Navy or higher authority.'' Mem. in Sup-

port of Mot. for an Order Requiring Def. Secretary of the

Navy to Release Personnel Associated with Chaplain Pro-

motion 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 Selec-

tive Early Retirement of Commissioned Officers on the Ac-

tive Duty Lists of the Navy and Marine Corps ¶ 12(f) (Dep't

of the Navy Jan. 8, 1991) (``Each member TTT shall swear or

affirm that he or she will not disclose the proceedings or

recommendations of the board except as authorized or re-

quired 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, e.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).

C. Procedural History

Plaintiffs -- current and former Non-Liturgical 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. John-

son, 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 pur-

poses 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. ¶¶ 3, 5663.

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 mani-

fested 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. ¶ 50 (Adair Compl.); see CFGC, 217 F.R.D.

at 25354. The Chaplains allege that the Navy: (1) provided

promotion boards with each candidate's religious denomina-

tion, CFGC Compl. ¶ 69; (2) used religious quotas and de-

nominational criteria for promotion and forced retirement

selections, Adair Compl. ¶ 50; (3) denied promotions based

upon ideological criteria, see id.; and (4) ``stacked'' promotion

and other statutory selection boards with Catholic and Litur-

gical Protestant chaplains, id. ¶ 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

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 interloc-

utory appeal and a petition for mandamus, which we consoli-

dated.

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 interlocu-

tory 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) (quot-

ing 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).

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 consid-

ered 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 pro-

ceedings.'' 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 (em-

phases 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 separa-

bility 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 signifi-

cant 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 interlocu-

tory appeal challenging denial of an attorney-client 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 selec-

tion boards are TTT vital to the effective functioning of the

selection board process,'' and disclosure of board proceedings

would ``severely undermine the ability TTT of the Navy to

effectively operate its promotion and selective early retire-

ment system.'' Decl. of Gordon R. England, ¶ 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 here 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 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 collat-

eral 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 attor-

ney-client privilege would be ``effectively unreviewable'' be-

cause 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).

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 impossi-

ble for this court to sort out and redress the harm 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 doc-

trine provides appellate jurisdiction to review the district

court's order.1 We now turn to the merits of the Navy's

claim of statutory privilege.

III. Merits

The Federal Rules of Civil Procedure encourage the ex-

change of information through broad discovery. Federal

Rule of Civil Procedure 26(b)(1) authorizes ``discovery regard-

ing 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 selec-

1 In a related case, the Ninth Circuit summarily dismissed for

lack of jurisdiction a similar appeal from an order requiring disclo-

sure, citing Bank of America v. National Mortgage Equity Corpo-

ration, 857 F.2d 1238 (9th Cir. 1988). Wilkins v. United States, No.

04-55046 (9th Cir. Apr. 27, 2004) (unpublished order). That dis-

missal 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 appel-

late jurisdiction. See Bank of America, 857 F.2d at 1239 (determin-

ing 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 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.

tion 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 with-

held, 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, pro-

ceedings of a selection board convened under section

611(a) of this title may not be disclosed to any person not

a member of the board.

This is the language of command -- ``may not be dis-

closed'' -- 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 proceed-

ings could be disclosed in connection with the very reason you

have them -- to submit recommendations to the Secretary of

a military department, the Secretary of Defense, and ulti-

mately the President for action under Section 618.

Section 618 also directs the Secretary of a military depart-

ment 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 presi-

dent 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. ¶¶ 6.2.2.5,

E4.1.6. Contrary to the Chaplains' contention, the fact that

the Secretary of the Navy exercised this authority in connec-

tion with Inspector General inquiries in 1997 and 1998 does

not support implying an additional exception for civil discov-

ery. The statute makes no provision for disclosure 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 Con-

sumer 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 in-

tended to exclude FOIA disclosures from the statutory re-

strictions it could easily have done so explicitly TTT as it did

with respect to the other listed exceptionsTTTT We are

consequently reluctant to conclude that Congress' failure to

include FOIA requests within the exceptions TTT was uninten-

tional.''). ``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 lan-

guage 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 pur-

pose 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.,

¶ 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

strengths and weaknesses. As Secretary England explained:

D etermining which officers are best qualified for pro-

motion from a pool of many fully qualified candidates

involves inherently difficult and subjective evaluations.

TTT Release of information regarding these proceedings

to the public will severely undermine the ability of the

Department of the Navy to effectively operate its pro-

motion 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 34852, two municipalities sued the Department of

Commerce, seeking to obtain from the Census Bureau raw

census data -- including individual respondents' question-

naires -- 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 dis-

close information reported by, or on behalf of, any particular

respondent.'' Section 9(a) of the Act, 13 U.S.C. § 9(a), pro-

vided 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 --

TTT

(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 ``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

§§ 8(b) and 9(a) of the Census Act, its mandate is to be

followed by the courts.

Id. at 362.

The Court noted that Congress's purpose in barring disclo-

sure was to promote the success and accuracy of the census

by assuring the public that responses would be kept confiden-

tial, 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 au-

thorizes 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 individu-

al 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 dis-

closed,'' 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 demon-

strates breadth.' '') (quoting Pennsylvania Dep't of Correc-

tions 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 ``pursu-

ant 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 over-

riding 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 Agri-

culture and, later, the Commodity Futures Trading Commis-

sion (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 with-

hold'' is not tantamount to ``may not be disclosed.''

In Freeman, the clause at issue provided that the Secre-

tary 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 134041 (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 ``publica-

tion,'' it categorically bars mere disclosure to anyone not a

member of the promotion selection board.2

2 As the district court recognized, see CFGC, 217 F.R.D. at 258

n.9, St. Regis Paper, supra, 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

discovery. St. Regis Paper, 368 U.S. at 21517. 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.'' Id.

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

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 liti-

gant.'' 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 ``defer-

ence to the supremacy of the Legislature, as well as

recognition that Congressmen typically vote on the lan-

guage 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 proceed-

ings 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 authoriza-

tion to convene ``selection boards to recommend for pro-

motion,'' while Section 611(b) provides authorization to con-

vene 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

remain free to litigate their discrimination claims and to support

them with other evidence.'' Reply Br. at 4.

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 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 distin-

guish 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 selec-

tion 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 25860,

the district court granted the plaintiffs' motion, holding that

``section 618(f) does not create an absolute or qualified privi-

lege 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 retire-

ment boards. The Navy similarly treated the selection

boards collectively, arguing on appeal that Section 618(f)

barred disclosure of both promotion and selective early retire-

ment boards. Appellants' Br. at 17, 1921.

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 point-

ed 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 inter-

pretation 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 ad-

dressed 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 continua-

tion 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 Amend-

ment. See Appellees' Br. at 46, 5255. 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 juris-

diction 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 proceed-

ings consistent with this opinion. The petition for mandamus

is dismissed as moot.

Contents Prev Next Last