In Re: England ( 2004 )

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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.
2
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.
3
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-
4
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 1-2–1-3 (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 ¶¶ 5.1–5.2. 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’
5
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.6
§ 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
7
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
8
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, 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 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 253–54. 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
9
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.
10
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.11
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).
12
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.
13
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.
14
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.
15
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 348–52, 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:
16
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
17
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
18
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 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 ‘‘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 215–17. 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
19
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.
20
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 258–60,
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, 19–21.
We are frankly a bit surprised that throughout this dispute
about whether a one-sentence statutory provision barred
21
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, 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 juris-
diction may be appropriate only when (1) a ‘‘nonappealable
order is ‘inextricably intertwined’ with the appealable order,’’
22
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.